The Volokh Conspiracy

Last week, the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning the collection of union dues for public school employees in Michigan. In Bailey v. Callaghan, a divided panel upheld Michigan’s Public Act 53 which provides: ““A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.” In other words, under this law, public school employee unions (including teachers’ unions) cannot rely upon payroll deductions to collect union dues and fees, but must shoulder the burden of collecting member dues themselves.

Unions challenged PA 53 on First Amendment and Equal Protection grounds. Judge Kethledge, joined by Judge Gibbons, made quick work of the union claims. Writing for the court, Judge Kethledge explained,

The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions” for union activities, id.; and payroll deductions are all that Public Act 53 denies the unions here. Seldom is precedent more binding than Ysursa is in this case.

Judge Kethledge rejected the union efforts to distinguish Ysura and summarily dispatched the Equal Protection claim under rational basis scrutiny.

Judge Stranch dissented, arguing Ysura did not control. Here is how she summarized her dissent:

The majority spills little ink in its dismissal of the school unions’ free-speech challenge. In doing so, it mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination. Most concerning to me, however, is the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a “check on union power.” The foundational requirement of viewpoint neutrality means little if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state. The unanswered constitutional question in this case is whether the government may burden expression it disagrees with by selectively restricting access to public resources that facilitate that expression. The answer is no. The majority wrongly concludes otherwise.

The Columbia Journalism Review has an interesting interview with James Goodale, former general counsel and vice chairman of The New York Times and author of the forthcoming book Fighting for the Press. Goodale is very critical of the current Administration’s hostility to press freedoms — “Worse than Nixon” — and the relative lack of critical response from journalists. As the CJR story notes, the Obama Administration “the Obama administration has prosecuted more alleged leakers of national security information under the 1917 Espionage Act than all previous administrations combined.” Goodale also expressed particular concern about Administration efforts to force journalists to reveal sources of classified information.

Why aren’t more people angry about what they see as Obama’s aversion to press freedom?

They don’t believe it. I actually have talked to two investigative reporters who are household names, and I said, “Do you realize what’s happening to you if this goes forward?” And I talk, I get no response, and the subject shifts to other parts of the book. No one seems to care.

So you think that if John McCain or Mitt Romney were the president and doing this, there would be a different response?

We’d be screaming and yelling and the journalists would be going crazy. And that doesn’t speak well of journalists.

On January 18, 2013, the Circuit Court in Wayne County preliminarily approved a settlement in a class action charging that  McDonald’s had sold non-”halal” Chicken Mcnuggets that had been advertised as “halal.”  A local activist named Majed Moughni was unhappy with the settlement terms (which required McDonalds to pay some money to two local Dearborn charities, along with a hefty fee to the plaintiffs’ lawyers, but nothing for the other class members), so he began a Facebook campaign (“Dearborn Area Community Members”) where he criticized the settlement terms and tried to  organize opposition to it.

So far, so good.  But the plaintiffs’  lawyers filed an action seeking an injunction against Moughni’s Facebook page, asking  that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said).

Unbelievably enough, the court granted the motion and entered a preliminary injunction; finding that  Moughni had made “materially false, deceptive and misleading statements concerning the settlement . . . and concerning the rights of the members of the Settlement Class,” and that Moughni “thereby engaged in deliberate and abusive conduct which has created a likelihood of confusion of class members, adversely has effected the administration of justice and has undermined this Court’s responsibility and authority to protect Class members from such abuses,” the Court

(a) ordered Moughni to remove all statements about the case from his Facebook page and to replace them with the Court’s own expression, and the parties’ own expression, about the proposed settlement, in the form of the preliminary approval order and class notice;

(b)  enjoined him from making any other statements about the case in any other forum—whether in person or electronically, or to the press;

(c)  ordered him to identify to the Court and the parties those class members who had associated themselves with Moughni’s point of view by using the Facebook “like” and comment functions; and

(d) forbade him from  “dissemination, circulation or publication” or any form for opting out or objecting to the settlement.

I don’t know why episodes like this get me so riled up, but they do.  It’s the worst kind of judicial over-reaching – protecting the court’s own turf from dissension and criticixm by exploiting its power over defendants.  Fortunately, Public Citizen has stepped in to move to vacate the injunction (aided, I’m told, by the ACLU of Michigan).  Good luck to them -

[Thanks to Paul Levy for the pointer]

That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit. For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions are).

Here’s the matter in a nutshell, and somewhat oversimplified:

1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of ... Cox’s right to appeal.

That’s right: Plaintiff’s plan is to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights to drop the appeal. No more appeal; the judgment is final; end of story.

Of course, if plaintiffs can do this to Cox, any plaintiffs who win a judgment against a defendant who can’t afford a supersedeas bond can do the same. Poor civil defendants’ rights to appeal would thus be lost, and so would the rights to appeal of plaintiffs who weren’t poor at the outset but face a ruinous judgment that they can’t afford to stay.

To be sure, in practice poor civil defendants often can’t appeal in any event, because they don’t have the money to hire a lawyer. But right now at least they can sometimes get pro bono counsel who is interested in the legal issue, or hire a lawyer with the promise to pay if they win the appeal and their assets are thus freed up, or get help from a lawyer friend, or appeal themselves if they are legally trained, or appeal pro se even if they aren’t legally trained. If the plaintiffs’ stratagem is accepted, though, such defendants’ appeal rights could be categorically cut off.

I know what you’re thinking — you’re thinking, “Yowza!” Yes, that’s what I thought as well, and I wrote a motion and accompanying memorandum all about it. You can now read my Memorandum in Support of the Motion to Make the Judge Say, “Yowza!,” Too, and also the plaintiffs’ response, filed this afternoon. I just finished the rough draft of the reply, which is due tomorrow afternoon; I will post it here some time tomorrow evening. [UPDATE: The reply has now been posted.]

And this coming Tuesday morning, I’ll be in beautiful Portland, Oregon, arguing this very matter in federal district court. As I always say, there’s no practice like pro bono practice.

In a recent Slate article, Rob Goodman and Jimmy Soni claim that the history of the fall of the Roman Republic strengthens the case against the Supreme Court’s decision in Citizens United, which ruled that the First Amendment protects corporate and union political speech against restriction by government. The influence of money in politics, they claim, was what brought down the Republic. Dubious analogies between the modern US and ancient Rome are all too common. This one has two serious flaws: the problematic use of money in ancient Roman elections involved outright bribery and corruption rather than merely spending on speech; and even that wasn’t really what caused the republic to collapse.

As Goodman and Soni recognize, the financial corruption that plagued ancient Rome was not spending on campaign speech, but flagrant bribery of voters and public officials:

Ancient politicians were just as skilled as modern ones at identifying and exploiting loopholes in election law. In Rome, the key loophole lay in the fuzzy distinction between ambitus (electoral bribery) and mere benignitas (generosity). Roman elections were often won on the strength of free food, drinks, entertainment, and sometimes hard cash offered directly to voters and financed by private fortunes. In fact, Roman campaign slogans were sometimes inscribed on the bottom of commemorative wine cups—you could drain the cup and find out whom to vote for. Most of the Roman elite relied on the gentleman’s agreement that the line between bribery and generosity would not be strictly patrolled. At worst, rank vote-buying was something your opponents engaged in; you, on the other hand, were simply being a good neighbor....

Politicians able to afford the massive bribes were usually able to afford protection after the fact. Worse, with no enforceable limits on spending and a heavy premium on one-upsmanship, the price of elections skyrocketed. Five years before the republic collapsed, Cicero made an astonishing claim: The wealthy had injected so much cash into election season that the interest rate in Rome temporarily doubled.

Nor could the power of money be confined to election season—its influence spread throughout the republic’s government. Rome had long sent politicians to govern a province after their year in office; ultimately, they felt entitled to fleece those provinces in order to recoup their election losses, a practice that spread deep resentment of the capital. The biographer Plutarch records bribery of civil servants, who were paid off to erase debts owed to the public purse. Jury verdicts, too, were regularly bought and paid for.

The problem with electoral bribery is that bribed voters vote for whoever pays them off rather than based on their perception of the public good. By contrast, political speech – whether financed by corporations and unions or not – is only effective if it persuades the public. And, Mitt Romney’s notorious comments notwithstanding, the overwhelming evidence is that voters generally do not form their political opinions on the basis of narrow material self-interest. The problem with modern voters is not that they are selfish, but that they are often ignorant and irrational. That problem cannot be solved by restricting corporate and union-funded political speech. Obviously, corporate and union-funded speech sometimes seeks to exploit political ignorance. But the same is true of speech funded by the media, political parties, activist groups, and others. In a political environment where the electorate is often ignorant, whoever is allowed to engage in electoral speech has a strong incentive to take advantage of that ignorance.

Second, while electoral bribery was a real problem in ancient Rome, it was not the cause of the Republic’s downfall. Rather, as I discussed here, the standard explanation for that collapse is that, as the Romans built a vast empire that encompassed most of Europe, North Africa, and the Middle East, the government in Rome lost control of its far-flung military forces, which were often more loyal to their generals than to the state. As a result, ambitious generals such as Marius, Sulla, and, finally, Caesar were able to march on Rome and take over the government. To the extent that money was important here, it was not electoral spending but the generals’ ability to cement their troops’ loyalty by rewarding them with plunder, increased pay, and free land – often at public expense.

Goodman and Soni conclude that the real problem in both ancient Rome and modern America is the perception of corruption that undermines the legitimacy of the government, which they imply is in large part caused by Citizens United. But decline in public trust in government long predates Citizens United, and was not even significantly accelerated by it. Moreover, if the government should have the power to suppress speech that creates a perception of corruption, that rationale would justify going far beyond censoring corporate or union-funded campaign speech. It would also justify suppressing speech by groups like Occupy Wall Street, which claim that the political system is rigged to benefit “the 1 percent” at the expense of “the 99 percent.” Speech by politicians, activists, and members of the media who directly claim that the system is corrupt surely contributes to the appearance of corruption at least as much as speech funded by corporations and unions, which often focuses on other issues.

Various arguments can be made against Citizens United, and against the alleged corruption of modern politics more generally. But strained analogies to ancient Rome add little to the debate over these issues.

This week I survived Hurricane Sandy, a massive tree covering the entire front of my house, an intermittent Internet connection, and even guest-blogging for The Volokh Conspiracy. For my last post, I wanted to end on a positive note. First, I wanted to let you all know that I am having a book event for Unlearning Liberty at the Los Angeles Press Club on November 29. Tickets are free, but please register to attend and tell your friends to do so too. It should be a good time.

I also wanted to share some of the ways the Foundation for Individual Rights in Education (FIRE, where I am president) is working to positively “change the culture” on today’s college campuses to one that better understands the importance of freedom of speech, freedom of conscience, freedom of association, due process, etc. After all, the problems I describe in Unlearning Liberty run deep.

In order to provide a much-needed basic introduction to the core concepts of free expression — something fewer and fewer high schools seem to be doing — FIRE authored a five-book series of Guides to Student Rights on Campus. We just updated our flagship Guide to Free Speech on Campus and released the new edition (available free for download) this summer. The books earned praise from Nadine Strossen, Alan Dershowitz, and Ed Meese. I hope you’ll read them and pass them along to students you might know who could use them.

But to truly “change the culture” we must stop rights abuses from happening in the first place by preparing and educating students for the challenges they will face. FIRE is trying to do this through several programs: our Campus Freedom Network of more than 5,500 students, professors, and alumni; our “Freedom in Academia” High School Essay Contest, which awards scholarship money to those students who write the most compelling essays explaining why free speech and First Amendment rights are crucial to higher education, and our work on developing, in conjunction with the Bill of Rights Institute, a curriculum for high school students that will provide them with a better introduction to the fundamentally different rights they will (or should) enjoy in college.

Even if, despite everything you read from me this week and everything I linked to, you don’t believe that there is anything wrong at our colleges and universities, hopefully we can agree that we can do a better job of developing college students’ appreciation for and understanding of debate and discourse, educating them in what their rights are and why they have them in the first place, and ensuring that the American tradition of free expression remains one of our strongest values for years to come.

Whether you support FIRE’s work or not, or even if you just want new material to argue with me about, please do check out my new book Unlearning Liberty: Campus Censorship and the End of American Debate. All royalties go to FIRE.

It’s been a real hoot (somehow that seemed like the right word) to guest-blog on VC this week! Thanks for reading and for all of your comments. If you ever want to continue the conversation, you can reach me at greg_lukianoff@thefire.org.

Last week, I had the pleasure of having my first op-ed published in The New York Times, and I was pleased (and a little surprised) when the letters to the editor that were published the next day were overwhelmingly positive.

The op-ed changed a lot during the editing process, evolving from what started as a piece primarily about restrictions on election-related student speech. (For more on that front, see several cases my colleague Will Creeley talked about in greater detail in a recent piece for The Huffington Post.) Switching gears, the editors in particular wanted me to add some discussion of elite colleges.

Thankfully, that wasn’t very hard — my new book, Unlearning Liberty: Censorship and the End of American Debate, has an entire chapter just devoted to censorship at Harvard and Yale. So I chose one fairly recent, very silly case from Yale, which I had previously written about for The Huffington Post.

As you may or may not know, Yale and Harvard have a football rivalry. Every year students and alumni get very excited about what they call “The Game.” And every year, Yale and Harvard students figure out new ways to insult each other. In 2009, Yale freshmen took a highbrow approach, plastering a line from F. Scott Fitzgerald’s 1920 novel This Side of Paradise on that year’s annual “Game” T-shirt: “I think of all Harvard men as sissies,” the T-shirt read. The Yalies added “WE AGREE” underneath.

Just for context’s sake, the full quote reads:

“I want to go to Princeton,” said Amory. “I don’t know why, but I think of all Harvard men as sissies, like I used to be, and all Yale men as wearing big blue sweaters and smoking pipes.”

But for Yale, this was a literary reference gone too far. After complaints, Dean Mary Miller pulled the T-shirt, stating, “What purports to be humor by targeting a group through slurs is not acceptable.”

The issue may have ended there. After all, many students are distressingly comfortable with curtailments on their speech. But the Foundation for Individual Rights in Education (FIRE, where I work) drew attention to what Yale had done, writing the university a letter and asking it to account for its decision to ban an F. Scott Fitzgerald quote. Months later, Yale President Richard Levin expressed “regret” over the incident, stating belatedly that Yale “would not want to give any students the impression that the content of their speech is subject to censorship” by contradicting the university’s powerful and inspiring promises of freedom of speech on campus.

Generally, I think of this case as pretty high on the ridiculousness scale and my editors at The New York Times apparently thought so, as well. I had come to believe that reasonable people would agree that this was a case of an absurd overreaction, but then I saw this student response to my piece in the Yale Daily News by Hannah Schwarz about my article.

Apparently, many at Yale still believe that sissy should be a verboten word. Even Isaac Park, the head of Yale’s chapter of the ACLU, declared it a “slur,” as it “disparages men for not conforming to gender roles.” And again, this is the head of the campus ACLU. Another student is quoted as saying “sissies wasn’t particularly offensive in Fitzgerald’s day; it’s pretty offensive now.” Actually, as I will argue below, I believe it’s the opposite. Then it was an insult that might prompt a man to fight; now it’s an ironic, old-fashioned joke.

The student response brings me back to the harm to public discourse I discuss in detail in Unlearning Liberty. To the students who supported the ban, to the Dean who ordered it, and to the students who still support the banning of a T-shirt with the word “sissy” on it, three very important things don’t matter:

First, the fact that Fitzgerald clearly did not mean it as a homophobic slur in context. The character was saying he didn’t used to be very tough and mature; he is not saying he used to be gay.

Second, in common usage, sissy is not a homophobic slur, and forgive me if I’m just assuming that Stanford kids talk much differently than Yale kids, but anybody using the word “sissy” among people my age and younger is almost always making an ironic joke. It’s an anachronistic insult, and if someone I knew was calling someone else a sissy, they would primarily be making fun of themselves for using such a ridiculously outdated term.

Third, the phrase was not intended as a homophobic slur by the freshman class. As the Yale Daily News reported, the Freshman Class Council president “said the council had thought the Fitzgerald quote simply represented the traditional rivalry between Yale and Harvard,” and were apparently shocked it was interpreted by some students and Miller that way. But, when the rule inches toward “you are automatically guilty anytime you offend somebody,” intentions, context, and actual standard meaning don’t matter very much.

Thankfully, at least one student commentator made the point that even if it was a slur, it should still have been allowed. As student Nate Zelinsky was quoted: “The problem with banning slurs or offensive speech is that any standard is inherently subjective. Who decides what counts as offensive? You? Me? Mary Miller?”

But there’s a more serious side to the story. In her article, Hannah Schwarz writes:

Whereas free speech laws tend to be mostly black and white (the Westboro Baptist Church ruling was 8-1, after all), schools are a different story. An iffier story, a very grey story. Although Tinker v. Des Moines established that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” schools are also supposed to foster tolerant environments.

Of course, I’m a little concerned that Schwarz didn’t know that Tinker is a case dealing with the rights of high school students and wouldn’t apply to a private college like Yale. But what really concerned me was that after a generation of campus speech codes, this quote strikes me as further evidence that somehow the expectation of what campuses are supposed to be like has been turned on its head.

Rather than it being socially accepted that universities should have the maximum tolerance for freedom of speech, the opposite expectation seems to be in place. Universities have succeeded in convincing some students that a campus’ role is primarily to promote a tolerant, comfortable, inoffensive environment. Sometimes this is referred to as a “safe space.”

What I find so troubling about this is that if universities are to be “safe spaces,” they should be safe spaces to engage in thought experimentation, argument, devil’s advocacy, discourse, and genuine candor, even if it is sometimes offensive. Campuses should be an environment safe enough that students can occasionally be wrong about things so they can learn more about the world and talk to people across lines of political, religious, and ideological differences.

I believe that a well-functioning university must be safe for freedom of speech and not so obsessed with any claim of offense. It’s hard “to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable,” as Yale’s own policies exhort students to do, if they must do so while walking on eggshells.

The second, more serious part of this case is that at the very same time it was taking place, a much bigger controversy was going on. That same fall, Yale University intervened in the publication of a book set to be published by Yale University Press called The Cartoons That Shook The World. The book was about the Mohammed cartoons, and the author, Jytte Klausen, had been told that the actual cartoons would be published in the book. This makes sense, as people should actually be able to see what all those people died for in the rioting launched by the images.

But Yale University disagreed and went ahead with preventing a book about the Mohammed cartoons from having any images of the Mohammed cartoons in it whatsoever, even those that had never previously been controversial. The American Association of University Professors, the National Coalition Against Censorship, the American Federation of Teachers, the College Art Association, the Modern Language Association, the National Council of Teachers of English, the National Education Association, and, of course, FIRE all protested the decision, as did a number of additional groups and university professors, including Eugene, but to no avail.

Indeed, in the very same letter President Levin expressed regret for Yale’s overreaction to the F. Scott Fitzgerald quote, he stood by the decision to ban the cartoons.

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The same is true of Liberty University, Yeshiva University, Brigham Young University, and a few others. You will never be able to seriously convince me that someone can either work at or attend BYU and suddenly be surprised that the university takes its Mormon identity more seriously than it does freedom of speech. Sorry.

So I’ll address, one at a time, the different strains these arguments typically take:

1.       “FIRE gives Christian colleges a pass.”

This argument is nonsense. Here is a short list of Christian institutions we have taken on over the years. It is important to remember that these are colleges that promise free speech quite clearly in their policies:

Georgetown University: In 2010, we wrote to Georgetown three different times over its unequal treatment of student organizations, specifically its refusal to recognize the pro-choice group H*yas for Choice. We have continued to stay after Georgetown on this matter this year. Additionally, Georgetown earns our worst, “red light” rating for speech codes, in violation of its stated commitments to free speech.

DePaul University: In 2011, we named DePaul one of our “12 Worst Colleges for Free Speech” in a feature we put together for The Huffington Post. Why did DePaul receive this dubious honor? The university claims to support free speech, yet it has been involved in a handful of FIRE cases over the years, including for refusing to recognize the student advocacy group Students for Cannabis Policy Reform and for pursuing harassment charges against a conservative student group that held an “affirmative action bake sale.”

Boston College: We have written to BC three times to ask the administration to clarify whether it truly is committed to free speech (as some of its policies would indicate), or whether it places other values, including its religious identity and mission, above students’ freedom of expression. We also wrote to the university over its disinvitation of Bill Ayers in 2009.

Le Moyne College: FIRE has had two memorable cases at Le Moyne, one over the dismissal of a student newspaper advisor for not exercising more control over the paper, and the other involving a graduate student dismissed from the education program due to a “mismatch” between his personal beliefs and the goals of the education program. The latter, in fact, led to a lawsuit in which the Supreme Court of New York’s Appellate Division found in his favor and held that Le Moyne was wrong to dismiss him without the due process promised in its own rules.

We have also taken on Notre Dame  for its Red light policies as well as Holy Cross.

2.       A variation on the first argument: “FIRE leaves Christian colleges off of its list of worst schools.”

Again, we rate and take on a large number of the most highly rated Christian colleges, as long as they promise free speech. But look at the colleges that we don’t rate, from our 2012 annual report on speech codes:  “Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, the U.S. Military Academy, the U.S. Naval Academy, Vassar College, Worcester Polytechnic Institute, and Yeshiva University. Bard College, which was not rated in previous years, chose this year to dramatically expand its stated commitments to free speech.” Did you catch all that? There are TWO Christian colleges on the list.Two. The others are secular, Mormon, Jewish, technical, and military schools, and one liberal arts college. (For the record, we do not rate the military academies because the U.S. Supreme Court has held that First Amendment protections do not apply in the military to the same extent they do in civilian life.)

3.    “FIRE doesn’t care about free speech because it doesn’t list Liberty and BYU among the ‘worst colleges for free speech.’”

Again, kind of a riff on the first two, but in the accusers’ minds this accusation somehow makes it safe to ignore everything FIRE says. People who make this argument, however, miss three things: freedom of association, informed consent, and contracts. You have both the right to form and the right to join associations that do not make free speech a high priority and place other values above it. So, for an early Thanksgiving example, Pilgrims have the right to start up an oppressive, speech-restrictive Pilgrim University. And if they are clear about their oppressive policies, a student can give informed consent to be governed by their rules in order to attend Pilgrim U. If Pilgrim U then oppresses a student, the student has no one to blame but him or herself.

The good news for free speech fans is that there just isn’t a huge market out there for colleges that don’t provide students and faculty with free speech and academic freedom. True, those who are happy to forgo their academic freedom and free speech rights in order to be in an environment that prioritizes other values are more often than not religious individuals, but it’s worth noting that these folks are the exception. That’s why we end up with only 9 “not rated” universities out of the roughly 400 that FIRE surveys.

The special fixation on Jerry Falwell’s Liberty University has always been somewhat amusing to me, because even if it did provide free speech guarantees, it still would not make it into our list of colleges because it’s not highly rated enough to fit within our criteria for rating a college.

4.    Finally, there is the sort of meta-argument of “Well, I just know that FIRE is in the bag for the Christian right because they defend them.”

It’s a suspicion I am tired of, frankly. I am a liberal-leaning atheist in an organization that was founded by two atheists, and I have proudly defended the rights of (among many others) evolutionary biologist Richard Dawkins to speak at the University of Oklahoma, a student at Washington State University to put on a play mocking the Passion of the Christ, students who wished to form a gay and lesbian group at Hampton College, and students at the University of Maryland who wanted to show an X-rated film at a campus event. The funny thing is that we get the “hey, you’re one of THEM” attacks from both sides. When I started as president of FIRE back in 2006, we got some very concerned emails from Christians afraid of this new “ACLU liberal” becoming the head of FIRE.

FIRE’s position on private colleges is certainly not a matter of convenience; indeed, many people either do not understand it—or like to pretend they don’t understand it, so they don’t have to take seriously the hundreds of examples of violations of student and faculty rights we have fought and won over the years. FIRE’s position on this gets flack from some conservatives who think we should leave private colleges entirely alone under all circumstances, and from some liberals who think BYU should not be allowed to be so, you know, Mormon. But we’ve chosen our position because we believe it is the right one not only under constitutional principles, but under the principles of how to run a genuinely pluralistic society. And, by the way, this approach maximizes the protections of freedom of speech by holding the overwhelming majority of top private colleges to their promises of free speech, while recognizing the importance of freedom of association and allowing for the reality that some people really would prefer to be at a college that has a greater allegiance to the teachings of St. Paul, Mao, Mohammed, or what have you.

I realize it’s much simpler and easier to use BYU or Liberty as an excuse to ignore FIRE’s advocacy. I also realize that doing so is tempting to some because it aligns with their suspicions and paranoias. It’s more complex to engage in the hard work of understanding the difference between one type of school and another type when it comes to their missions, identities, and historical practices. It’s also more accurate. And ultimately, more rewarding.

A few commenters on my latest post for The Volokh Conspiracy have been riffing on the theme that the Foundation for Individual Rights in Education (FIRE, where I work) is only able to show a few examples of censorship on campus, and therefore it must not be that big of a problem.

Here’s my erudite response: hogwash.

First of all, it takes a very rare brave and/or motivated student to even bother fighting back against his or her college or university administration. Nonetheless, FIRE, which is not exactly a household name, receives about 450 requests for help every year from students or faculty members who believe their free speech or due process rights have been violated. Because of our size, we don’t actually have the capacity to handle all of the case submissions we receive. Some cases we refer to attorneys, while other cases are settled in private. The cases that we talk about publicly are only those about which we have been given permission to speak. But even with all these limitations, here’s a short list of just some of the cases we have fought over the past few years:

• California State University – San Marcos: Disciplinary Investigation of Humor Magazine
• Catawba Valley Community College: Student Banned from Campus after Protesting College’s Deal with Debit Card Company on Facebook
• Middlebury College: Students Threatened With Punishment for Satirical Press Release
• North Carolina State University: ‘Civility Statement’ Prohibits Constitutionally Protected Speech
• Ohio University: Political Flyers Censored in Dorms
• Rutgers University: Bias Investigation of Satirical Newspaper
• Saint Augustine’s College: Student Prohibited from Walking at Graduation Due to Facebook Post
• Sam Houston State University: Faculty Member Takes Box Cutter to Students’ Free Speech Wall; Police Threaten Students with Misdemeanor
• Sinclair Community College: Police Ban Signs at Religious Freedom Rally
• Sinclair Community College: Unconstitutional Ban on Distributing Literature After Class
• Snow College: Lawsuit for Discriminating Against Religious Students
• Southwestern College: Professors Banned from Campus after Students Stray Beyond ‘Free Speech Patio’
• Syracuse University: Disciplinary Investigations of Satirical Law School Blog
• Syracuse University: Education Student Expelled over Facebook Comments
• Syracuse University: Police Threaten to Censor Halloween Costumes
• Tufts University: ‘Cox’ T-shirt
• Texas A & M: Faculty Member Fired After Criticizing the University
• University of California at Los Angeles: Disciplinary Investigation of Student’s Video
• University of Wisconsin – Stout: Censorship, Referral to Threat Assessment Team, and Threat of Criminal Charges after Professor Puts Posters Outside Office Door
• Western Washington University: Student Investigated Over Parking Ticket Remark
• Winona State University: Outdoor Speech Restrictions
• Yale University: Censorship of Mohammed Cartoons at Yale University Press
• Yale University: Controversial Anti-Harvard T-shirt Quoting F. Scott Fitzgerald
• Yale University: Fraternity Suspended Five Years for ‘Intimidating’ Satirical Chant

If you want a list of all of our public cases, you can go here. And we are under no illusion that we are involved in all of the free-speech-on-campus cases out there.

I find it funny that these comments are written underneath a post in which I point out that FIRE has found that 65 percent of the 392 top colleges in the country maintain what we call “red light speech codes.” Within the same post I also list a dozen challenges to speech codes, all of which resulted in their defeat.

Something that some readers couldn’t seem to understand — and I find this puzzling for a constitutionally-oriented law blog — is that even when they’re not enforced, speech codes are a harm in and of themselves. If you have a policy like the one they used to have at Drexel University, which banned “inappropriately directed laughter,” the very existence of the policy sends a message to students that they should really watch what they say or even laugh about. This is the so-called “chilling effect,” and is the part of the rationale for why laws that violate the First Amendment can be found facially unconstitutional without having to prove that they have been enforced.

In my first post for The Volokh Conspiracy, I pointed out that a surprisingly small number of students and faculty say they strongly agree with the statement that it is “safe to hold unpopular positions on campus.” I go into this problem in great depth in my book, but if students and faculty don’t believe it is safe to even hold unpopular beliefs on campus, something is making them think twice about what they say. It may be the chilling effect of both punishments and speech codes, or more likely the culture that created the punishments and speech codes and considers them acceptable, but either way such data should disturb anybody who cares about candor and discourse on campus.

And, yes, the cases I talk about in the video are somewhat older. This is because FIRE had no video budget for a long time, so we compiled that video from the few interviews we were able to record over the years. If you check out my book, you will see that it has dozens of updated examples that happened within the past year or so.

Lastly, speech codes cause harm in and of themselves because by putting manifestly unconstitutional policies on the books at public universities across the country, colleges are failing to encourage freewheeling debate and discussion and are teaching students all the wrong lessons about what rights they actually have and the deep philosophy that undergirds those rights. For those of you who interested in a refresher on some of the epistemological reasons why we believe in free speech in the first place, I highly recommend this video of a talk by Brookings Institution scholar Jonathan Rauch, or this one that I recently did with author Steven Pinker.

While the public seems to fondly believe that speech codes are a thing of the past — a bygone product of the “political correctness” movement of the 1980s and 1990s — they are alive and well on the modern college campus. As I explain in Unlearning Liberty, these days, you’re unlikely to open up a student handbook and find a section labeled “Speech Code.” Instead, these codes are woven into other policies regarding student conduct, particularly those that prohibit “harassment” and “incivility.” What hasn’t changed about these speech codes, however, is how ludicrous they often are.

In the Foundation for Individual Rights in Education‘s (FIRE’s) most recent annual report on campus speech codes, we found that nearly two-thirds (65 percent) of the 392 colleges and universities we surveyed across the country maintained speech codes that clearly fail to meet First Amendment standards (which FIRE labels as “red light” policies). See Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation’s Campuses for our analysis. Moreover, even though public schools are legally required to uphold students’ First Amendment rights, these institutions were no more likely than private schools to have policies that met constitutional standards; 65 percent of both public and private universities surveyed received a “red light” rating.

This is actually an improvement from past years. In fact, the percentage of overall “red light” schools has now dropped for four straight years, from 75 percent in 2009, to 71 percent in 2010, to 67 percent in 2011, to 65 percent today. Additionally, the number of institutions that do not maintain any published policy restrictions on student free speech (which we call “green light” schools) has nearly doubled over that time, from 8 to 15. Nonetheless, the fact that such a high proportion of surveyed colleges and universities continue to maintain clearly unconstitutional policies on student expression, and that so few of them have rid their campuses of speech codes, is cause for disappointment.

In fact, there are so many laughable speech codes out there that FIRE has been able to highlight an outrageous “Speech Code of the Month” every month since 2005 — with no risk of running out of suitable material. Some early examples of clearly unconstitutional policies include our February 2006 Speech Code of the Month at Jacksonville State University, which stated that “No student shall threaten, offend, or degrade anyone on university owned or operated property.” Our September 2007 Speech Code of the Month, courtesy of Ohio State University, simply mandated, “Do not joke about differences related to race, ethnicity, sexual orientation, gender, ability, socioeconomic background, etc.” Drexel University’s Speech Code of the Month (September 2006) used an even wider brush; it broadly banned “inconsiderate jokes” and “inappropriately directed laughter.”(It’s useful to note that Drexel is a private university in Philadelphia that, like the vast majority of private colleges and universities, promises students freedom of speech in its official policies. While private universities are not bound by the First Amendment, when a private institution clearly commits itself to free speech on campus and holds itself out as a bastion of free inquiry, FIRE holds that school to the same standards governing freedom of expression that govern a public university. This also reflects the “contract theory” of individual rights that has been recognized by many courts reviewing college promises to students. For more on our stance regarding private colleges and universities, please see this piece I wrote for RealClearReligion last month.)

The trend of sometimes sad, sometimes hilarious speech codes continues to this day. The University of Delaware received the Speech Code of the Month “honors” in August 2012 for maintaining a “bullying” policy that banned “teasing,” “ridiculing,” and the “spreading of rumors.” Illinois State University, our September 2012 honoree, has a Code of Student Conduct that sets forth a list of “non-negotiable values,” including “civility,” “an appreciation of diversity,” and “individual and social responsibility,” and states that “when individual behavior conflicts with the values of the University, the individual must choose whether to adapt his or her behavior to meet the needs of the community or leave the University.” That’s right — the alternative to abiding by this code is to leave the university. This month’s policy, which we awarded to SUNY New Paltz, prohibits distributing or even discussing any “written or graphic material that ridicules, denigrates, insults, [or] belittles” any individual or group that has “protected status.” Of course, it’s up to the administration to decide what counts as ridiculing or belittling.

These and many similar policies have persisted despite the fact that they have been consistently defeated in court decision after court decision, a half dozen of which included challenges to policies that FIRE had already publicly declared to be unconstitutional. The list of cases, which now spans over two decades, includes: McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating university policies banning speech that causes “mental harm,” “offensive” or “unauthorized” signs, and conduct that causes “emotional distress”); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (striking down a university sexual harassment policy on First Amendment grounds); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring a university discriminatory harassment policy facially unconstitutional); University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155 (S.D. Ohio Aug. 22, 2012) (invalidating a university’s free speech zone policy on First Amendment grounds); Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010) (invalidating a university’s “cosponsorship” policy due to overbreadth); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of a university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding a university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of a university harassment policy due to overbreadth); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding a university sexual harassment policy void for vagueness and overbreadth); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring a “harassment by personal vilification” policy unconstitutional); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring a university’s racial and discriminatory harassment policy facially unconstitutional); and Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of a university’s discriminatory harassment policy due to unconstitutionality).

FIRE’s goal, unusual as it might seem, is to put ourselves out of business, so to speak. We’d love to wake up one morning and find that colleges and universities are the open forums for speech that they so often promise to be. I’d love to make Unlearning Liberty an obsolete tale of past censorship. Sadly, we continue to be amazed and frustrated that so many universities insist on maintaining unconstitutional speech codes despite clear legal precedent against such policies. I’d be interested to hear why the Conspiracy community thinks this happens. What techniques would you suggest to change this trend on campus? I know you guys aren’t short on opinions.

As those of you who read my blog yesterday know, Eugene invited me to be a guest contributor to The Volokh Conspiracy this week in order to discuss some of the issues raised in my recently released book, Unlearning Liberty: Campus Censorship and the End of American Debate.

Yesterday, I described the negative impact that suppressing speech on campus has on our greater society. I also promised to give some shocking examples of censorship. So before we get into the legal issues that these cases raise, let’s take a moment to examine the state of free speech on campus.

Over the last decade, the Foundation for Individual Rights in Education (FIRE, where I work) has fought against so many acts of censorship that we decided to put together a short video that highlights some of our most egregious and bizarre cases:

The video features:

• Hayden Barnes, a student from Valdosta State University who was expelled for peacefully protesting the proposed construction of a parking garage.
• Keith John Sampson, a student in Indiana found guilty of racial harassment for publicly reading a book.
• The University of Delaware, a public college that developed a program of thought reform to serve as a “treatment” for students’ incorrect attitudes and beliefs.
• Andre Massena, a student at Binghamton University (formerly SUNY-Binghamton) who faced suspension or expulsion for challenging the Department of Social Work.
• KC Johnson, a professor at Brooklyn College and author of a book about the Duke Lacrosse case who was threatened with a possible investigation after publicly criticizing the School of Education for what he perceived to be indoctrination and viewpoint discrimination by members of the faculty.

These cases are just a few in the long list of rights violations that FIRE has battled. Last year, FIRE began drawing attention to this kind of brazen censorship by publishing an annual list of the “Worst Colleges for Free Speech” in The Huffington Post. The list serves as a public shaming of sorts, with the hope that students, alumni, and faculty at these colleges and universities will take action against these injustices. (Out of fairness, we also publish a list of the “Best Colleges for Free Speech.”)

Over the course of my 11-year career defending student and faculty rights, I have often had to explain to people that the problem with campus censorship is more than just theoretical — it places real pressure on students not to discuss and explore new ideas.

Indeed, a 2010 study conducted by the American Association of Colleges and Universities called “Engaging Diverse Viewpoints” found that out of the 24,000 college students and 9,000 faculty and staff members surveyed, only 35.6 percent of the students — and only 18.5 percent of the faculty and staff — strongly agreed that it was “safe to hold unpopular positions on campus.” If you break down the numbers a bit further, the picture is even worse. Only around 30 percent of college seniors strongly agreed with the statement — a substantial drop from 40 percent of freshman, with each successive year less optimistic than the one before it. The longer they stay on campus, it appears, the less safe students feel about holding unpopular positions. Perhaps that explains why only a miserable 16.7 percent of college professors strongly agreed with the statement.

Colleges should be places where students and faculty are free to “think the unthinkable, discuss the unmentionable, and challenge the unchallengeable,” as Yale so eloquently promises in its college literature. Yet, as I explain in Unlearning Liberty, remarkable cases of censorship are taking place on today’s campuses, often at some of the most prominent schools in the nation.

Next post: Campus speech codes!

Thank you to Eugene for inviting me to guest blog on The Volokh Conspiracy this week. By way of introduction, I am a First Amendment lawyer and the president of the Foundation for Individual Rights in Education (FIRE), and my new book, Unlearning Liberty: Campus Censorship and the End of American Debate, hit the bookshelves just last week.

As some readers know, Eugene has taken a special interest in campus censorship. He has frequently highlighted FIRE’s work on this blog and was a keynote speaker at our 10th Anniversary Dinner. We have also worked together on a couple of cases, including State v. Drahota and Snyder v. Phelps.

This week, I will be writing about the reality of campus censorship, the prevalence of campus speech codes, and numerous shocking stories that show how even relatively tame and uncontroversial speech is targeted. Look for my next post to see some remarkable cases of campus censorship.

But I will also be going beyond the laundry list of horror stories and discussing the many ways in which campus censorship harms us all. As I discuss in my book, I believe that it damages our greater society in two distinct ways.

The first and most dangerous harm is that speech codes and ridiculous “free speech zones” make students far too comfortable with restrictions on their freedom of speech. In a recent case at the University of Cincinnati, for example, libertarian students were restricted to only 0.1 percent of campus when they wished to collect signatures for a ballot initiative, and were threatened with police action if they strayed outside those boundaries. Further, I argue that frankly creepy indoctrination programs like the one run out of the University of Delaware teach students that censorship of “wrong” opinions is what good and educated people should do. The combination of a lack of awareness of our basic rights and the belief that freedom of speech is an impediment to, rather than a necessary component of, social progress poses a long-term threat to our freedom.

The second harm is subtler, but it’s one we see every day. If higher education were living up to its goal of making people deeper, sharper, and better critical thinkers, we could reasonably expect to live in a golden age of discourse. After all, more of our population is college educated than ever before. But I don’t believe anybody thinks that’s the case. By tolerating censorship and by making it risky for students to honestly speak their minds, universities encourage students to play it safe and talk only to those students with whom they already agree — a tendency that can’t help but spill over into the world off campus once those students leave. This means that higher education, an institution that should be opening people’s minds to new ideas and dissenting opinions, may actually be supercharging our political polarization.

One of the most intriguing pieces of data I came across while researching Unlearning Liberty is that there is an inverse relationship between how much education people have and how frequently they talk to those with whom they disagree politically (this research is covered briefly in Diana Muntz’s excellent Hearing the Other Side: Deliberative versus Participatory Democracy). In other words, there is evidence that the more schooling you receive, the tighter your echo chamber becomes. A truly educated person, however, should develop the intellectual habit of actively seeking out challenging debates rather than settling into a self-affirming clique.

One theme that I started to develop in the book that I hope to explore further in future writing is how higher education legitimizes and hones what I call “cheap dodges” to debate and discussion. Probably the most well-worn of these campus dodges is the claim of being “offended” by certain speech, but other tactics exist, including the related concept of “feigned outrage.”

In illustrating what my friend and Brookings Institution scholar Jonathan Rauch likes to call the “offendedness sweepstakes,” I draw on a number of examples from popular culture, including the whole kerfuffle around Rush Limbaugh and Sandra Fluke, and other controversies involving Bill Maher, Sarah Palin, and, most ridiculously, Robert DeNiro and Callista Gingrich.

I also identify cheap dodges that I have run into, both in law school and later on in my work with FIRE. I refer to them as “selective relativism” (the ability of some students to be morally absolutist at one moment and relativist the next, depending on whether it allows them to short circuit a debate they don’t like) and “selective uptightness” (similar to selective relativism, of course). For an illustration of the latter, check out this wacky story about an incident at Cornell involving Margaret Cho and a forbidden font. Yes, a forbidden font.

This all brings me to one of my goals for the week. I hope to be able to take advantage of The Volokh Conspiracy community’s collective genius and ask you, the readers, to analyze some of the theories I discuss in my new book. I have two questions for you:

1) If you do agree that we as a society have become too adept at using cheap dodges to avoid meaningful debate, what do you think the most common of these tactics are?

and

2) Do you think our colleges and universities are doing a good job of teaching students to avoid these easy outs, or are they in fact encouraging them?

Of course, if you don’t think the use of easy tactics to avoid debate is currently part of a societal trend, please let me know. I’m looking forward to your responses!

I thought it would useful to compile a list of some of the most offensive words, images, etc. which have been held to be protected by the First Amendment. I’m especially interested in Supreme Court cases, but other cases are fine too. So commenters, please submit your nominations. Thanks!

In United States v. Alvarez the Supreme Court has held that the Stolen Valor Act is unconstitutional. Justice Kennedy wrote for the Court, joined by the Chief Justice, and Justices Ginsburg and Sotomayor. Justice Breyer, joined by Justice Kagan, concurred in the judgment concluding the law is unconstitutional as written, but also suggesting that a more carefully drawn statute could survive First Amendment scrutiny. Justice Alito dissented, joined by justices Scalia and Thomas. The opinion is here.

For some of Eugene’s prior posts on this case see here and here.

The health care cases were not issued today. They are expected on Thursday. But there are plenty of other significant opinions. Two that are of particular interest to me are America Tradition, Inc. v. Bullock, the Montana campaign finance case, and Arizona v. United States, the Arizona immigration case.

The Montana decision is a per curiam opinion summarily reversing the Montana Supreme Court’s decision upholding a state law restricting campaign-related speech by corporations. I think the 5-4 majority opinion is pretty obviously correct in holding that this law is inconsistent with the Court’s 2010 decision in Citizens United:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party....” The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment.... In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation....” The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.

In dissent, the four liberal justices argue that Citizens United should be overruled.

In the Arizona decision, a 5-3 majority, with Chief Justice John Roberts and Justice Anthony Kennedy joining three liberal justices (Justice Kagan was recused), ruled that three out of the four challenged provisions of the Arizona immigration law are preempted by federal law. The fourth – the controversial provision requiring state police to check the immigration status of some people arrested for other reasons – is remanded to state courts so that they can construe the state law in order to determine more fully whether it conflicts with federal law. I am no fan of the Arizona law. But I don’t know enough about the relevant federal immigration law to have any strong opinion on whether today’s decision is correct.

UPDATE: In the original version of this post, I accidentally got the lineup of justices in the Arizona case wrong. I noticed the error almost immediately, but was unable to correct it for some time due to technical problems with the VC website. I have now fixed the mistake, and apologize for the annoyance.

UPDATE #2: It is perhaps worth noting that, in the immigration case, Justice Alito agree with the majority on one of the three provisions of the Arizona law that they ruled were preempted.