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Strange First Amendment Decision:

The Second Circuit just handed down Husain v. Springer, which strikes me as quite odd. The case is complex, but the short version is this:

A college student newspaper endorsed a slate of candidates for student government. The university president thought this was unfair and a violation of student government election rules, so she canceled the election, suggesting that she would cancel future elections if the student newspaper made similar endorsements in the future. The Second Circuit held that this cancellation of the election violated the student newspaper's First Amendment rights, because it was "designed to chill the speech contained in future editions."

What makes this a strange First Amendment case, of course, is that the newspaper wasn't ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose -- "if you keep endorsing candidates, we'll make sure that your endorsed candidates don't get elected."

I'm unaware of any First Amendment case that remotely reaches this sort of "chill[ing of] speech"; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).

But let's turn to the merits: Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?

Say, for instance, that a newspaper -- not even a student newspaper -- urges the government to do something. A government official doesn't like what it sees as improper meddling (perhaps the government thinks the newspaper's justification interferes with government decisionmaking, or is based on some improper reason, such as someone's race, religion, sexual orientation, or what have you). The official then says "You want us to hire [or not hire] a gay candidate because he's gay. [Assume, just for the sake of simplicity, that there's no legal prohibition on sexual orientation discrimination.] I disapprove of this argument, and I feel it taints the entire selection process. Instead, we will just start the hiring process over in six months."

Or "You want us to hold a State History Appreciation Day event -- we were planning to, but now that you've started a campaign aimed at characterizing the event as partly a commemoration of our state's Confederate history, we feel that the event would be tainted in people's minds, so we'll cancel it." Or "You threatened to use our Veteran Appreciation Day event as a vehicle for your 'God Hates Fags' / 'Thank God for Dead Soldiers' demonstration, so we'll cancel the event altogether and deprive you of your excuse."

Does that really violate the First Amendment rights of the speakers whom the government disapproves of? It seems to me the answer is no, but the Second Circuit's decision would suggest that the answer would be yes.

Nor is there something special here about canceling the student election. As far as the opinion is concerned, there was nothing otherwise illegal about the president's decision to cancel the election -- the decision was within the president's power.

If the cancellation decision was illegal, then it would have had to be challenged under whatever state law made the decision illegal, not as a violation of the newspaper's First Amendment rights. For instance, if a governor canceled a statewide election because he disapproved of some newspaper endorsements, I'm sure this would be illegal, because governors generally aren't allowed to cancel elections at their own discretion. But the illegality would be a violation of state law, not of the newspaper's First Amendment rights.

The Second Circuit decision basically reasons that the government may not "engag[e] in conduct designed to chill the speech contained in future editions" of the speaker's speech, even when the "conduct" is simply the government's decision not to allow its government processes to be used to accomplish the results the speaker urges. Doesn't seem quite right to me, but I'd love to hear what others think.

wooga:
Suppose a student columnist writes a dumb editorial. If I were to thoroughly embarrass the columnist through mocking, derision, and good old fashioned fisking in a blog post somewhere, I would HOPE that my efforts would discourage the columnist from writing further stupid columns.

Does this decision mean that my blog post (assume I am a 'state actor') has an unconstitutional chilling effect on the First Amendment rights of the student columnist?
7.13.2007 5:54pm
Edward A. Hoffman (mail):
I generally agree with Eugene, but his analysis focuses almost entirely on the first election that was called off. I think the court was more concerned about the statement that there would be no elections in the future unless the paper agreed not to endorse candidates. This was not so much a decision to change how the college operates based on what the newspaper said as a decision to pressure the newspaper into not saying such things anymore.

What the president intended was probably not to put an end to student elections but rather to continue holding elections while putting an end to endorsements by the paper. In other words, her goal was indeed to chill speech even though she pursued that goal in a very unorthodox manner. I don't think the chilling of speech here is just a byproduct of a decision to end elections; rather, I think the potential end of elections would be the byproduct of the college's deliberate attempt to chill speech.

I'm not sure offhand how much of a difference this makes, but I think Eugene's post largely misses this aspect of the case and I'd like to know his thoughts.

[Belated disclaimer: I haven't read the decision and have based my factual analysis entirely upon Eugene's post.]
7.13.2007 6:00pm
wooga:
After wasting a lot of time (obviously written by a law clerk eager to regurgitate her law school outline) discussing the forum created by the student newspaper, the court found that the president's actions were based on her opinion that the newspaper's views were wrong. Thus, the president was engaging in viewpoint discrimination.

The court then said:
"Such viewpoint discrimination is clearly impermissible in a limited public forum open to unrestricted speech on campaigns, candidates, and issues affecting CUNY."
(p. 29, emphasis added). That's it. In my first skim, I did not see any discussion of Prof Volokh's point that 'frustration of purpose' is not clearly prohibited by the 1st Amendment. Page 29 is really stunning in its superficiality.

It's amazingly easy to come up with counter examples showing the absurdity of this decision. Suppose the president had said "I will refuse to wear deodorant so long as the newspaper continues to bash our sports teams." Refusing to wear deodorant is within the president's power, but it could be mightily adverse to the people around her, and she has explicitly tied it to the newspaper's speech. Would this court then order the president to put on deodorant?
7.13.2007 6:16pm
Ken Arromdee:
Refusal to wear deodorant is an action within the president's personal power, but is not an exercise of the president's official authority. Refusing to hold student elections is.
7.13.2007 6:18pm
Constitutional Crisis (mail):
RE: Qualified immunity

"Because factual issues exist with respect to the question of whether the college president is entitled to qualified immunity, we hold that it was inappropriate for the district court to grant summary judgment to the defendants."
7.13.2007 6:18pm
Smokey:
EV states:
As far as the opinion is concerned, there was nothing otherwise illegal about the president's decision to cancel the election -- the decision was within the president's power.

Given that fact, why is this even an issue? If there is no law mandating elections for student posts, and if the president is acting within the president's authority, then any and all student elections take place at the discretion of the president.

To bring this to a head, the president should appoint the student officers. Can you imagine the self-righteous arm-waving and whining from the poor, put-upon students whose precious feelings are hurt?

Pass the popcorn!


[PS: I fully sympathize with the dissenting judge's statement that the students' complaint is a 'slow-motion tantrum.']
7.13.2007 6:24pm
Fub:
But let's turn to the merits: Does your right to urge result X really include the right to prevent the government from making result X impossible (even when the government is retaliating against your speech)?

Say, for instance, that a newspaper -- not even a student newspaper -- urges the government to do something. A government official doesn't like what it sees as improper meddling ...

Or "You want us to hold a State History Appreciation Day event ... Or "You threatened to use our Veteran Appreciation Day event ...

Does that really violate the First Amendment rights of the speakers whom the government disapproves of? It seems to me the answer is no, but the Second Circuit's decision would suggest that the answer would be yes.
I have a minor nit with the analogies, which may be irrelevant but I'll ask anyhow. The analogies seem to involve no actual rights, constitutional or contractual, of the columnist. I've never heard of any rights to "history appreciation" or "veterans appreciation" events.

But would the fact that the election involves the exercise of a right matter? Presuming that there is some right of the columnist (as well as all other students) to elect government officers, hasn't that right been violated?

According to the case factual synopsis:
The intent of Bylaw 15.2[d] is to limit the role of college presidents to "receiving appeals from the Student Elections Review Committee where an individual student has received a negative determination on a request."
Doesn't that confer a right on all students, including the newspaper columnist, to have the conduct of elections not interfered with by the college president except on appeal from the Student Elections Review Committee?

If that bylaw confers a right, then does the abrogation of that right constitute an interference with a free speech right, if the abrogation is in retaliation for speech?
7.13.2007 6:36pm
Dilan Esper (mail) (www):
This may be a situation where motivation matters in First Amendment analysis (to pick up on an earlier Volokh post).

For instance, the government can take your property for a public use if it pays you just compensation. However, suppose that the government says "if you continue to speak out against the Iraq War, we will use the eminent domain power to force you out of your house; we'll compensate you and use the property to build a new federal building, so it's fully constitutional and you can't complain. But if you stop speaking out against the Iraq War, we will cancel the project and not take your land".

Is that constitutional? I doubt it.
7.13.2007 6:41pm
Laura S.:
Interesting: this highlights a reason perhaps that my ug student government was actually a nonprofit corporation registered in the State of California. Our student government elections were formally balloting for the board of the directors of the corporation--a process in which a University President would have no legal right to interfere.
7.13.2007 6:48pm
paul lukasiak (mail):
After reading the decision, I think that Mr. Hoffman makes an excellent point with regard to the intent of the cancellation of elections -- to stifle the free speech rights of students.

The case also raises the issue of viewpoint discrimination. The publication in question was highly critical of CSI's administration and then-current Student Government's cozy relationship with the CSI administration. Would the President (and the Student Government affiliated committees) have been quite so quick to shut down the elections if the paper been more positive toward CSI administratiors and/or supported the slate comprised of and endorsed by the incumbent Student Government?

(I'd like more information about the president's "power" to cancel student government elections -- because the fact is that every college I've ever heard of provides an implicit guarantee in its promotional literature that a student government will exist that acts as the collective voice of students---and that the student government is elected in some fashion. Isn't this a violation of the implied contract with the student body -- and a violation of their rights to speech itself? )
7.13.2007 7:00pm
paul lukasiak (mail):
[PS: I fully sympathize with the dissenting judge's statement that the students' complaint is a 'slow-motion tantrum.']

yes, it would have been far better if, rather than seeking relief in the courts, the student electorate whose choice in the election had been nullified by executive fiat had rioted....
7.13.2007 7:04pm
Smokey:
'Rioted'??

Is that their only recourse, other than filing a lawsuit?
7.13.2007 7:09pm
robertemmet (mail):
Ooh, Ooh, Pick Me Professor V!

It's all a metaphor for McCain-Feingold. If you accept our university/FERC money, you have to agree not to say anything that is partisan before the election, or we will cancel the election, so there.

Seriously, I sorta agree with Dilan. But if an institution funds a newspaper (as the college did here), what limits can it place on the content of the newspaper without even implicating the First Amendment. Does it matter if the institution is a public institution, not a private college or university? If Enron establishes an internal employee newsletter (which is the same as a student newspaper) can it cancel the employee picnic if a whistleblower wants to publish news of dirty tricks? (There's got to be a better parallel here, but elections in corporations involve stockholder rights, not those of employees, and anything else I can think of is probably a violation of a collective bargaining agreement somewhere).
7.13.2007 7:12pm
Eugene Volokh (www):
Dilan Esper: No doubt that taking your property because of your speech is unconstitutional. But here the university president didn't take anything from the newspaper, or otherwise penalize the newspaper -- it only frustrated the realization of the newspaper's political goals.
7.13.2007 7:16pm
Dan Hamilton:
Elections are different. The First is about protecting political speach. Doing away with the election because she didn't like the newspapers political speach is against the First. She has the right to cancel the election for any other reason, that is within her power. For her to be able to cancel an election because of political speach means that she controls the political speach. That should not be within her power.

If this was anything else besides an election there would be no problem with her canceling it. Say a Homecomming parade because she didn't like the way the newpaper was promoting it. Fine. No free speach issue.

Elections are different.
7.13.2007 7:18pm
wooga:
Refusal to wear deodorant is an action within the president's personal power, but is not an exercise of the president's official authority. Refusing to hold student elections is.

Ken,
Fine. What if the president used her official authority - for the same purposes - to order that the official uniform of all student work-study employees would henceforth be obnoxious yellow bell bottom pants and clown noses? It would still be the president using her power to indirectly retaliate for the newspaper's speech, without actually engaging in speech regulation.
7.13.2007 7:19pm
Thorley Winston (mail) (www):
I don't see what the big deal is, our student service-fee funded school newspaper used to endorse candidates for student government all the time. Both were rightfully regarded as a joke by the students but unfortunately as the amount taken from each student to subsidize them was relatively small (under $20 a year), it was tough trying to motivate people to be willing to do anything about it.
7.13.2007 7:20pm
Thorley Winston (mail) (www):

Elections are different.


I'm not sure that the scrutiny that gets applied to voting rights in the case of election for public office like mayor, city council, governor, State legislature, Congress or the POTUS applies to an election for student government. Some have suggested that the administration could theoretically abolish it entirely or appoint the representatives which couldn't be done for the actual government. Does anyone know of any applicable statute or case law regarding whether there is such a thing as a "voting right" for student government even at a public university?
7.13.2007 7:25pm
Steve2:
While strange, I think there've been much stranger - and more harmful - circuit court rulings recently about government response to unwanted political speech. Specifically, the 6th Circuit's Kidwell v. City of Union ruling comes to mind, where a panel's 2-judge majority held that a city government can use public funds to campaign against a citizen ballot initiative to keep the city from doing certain spending and issuing a levy to pay for it. They cited the city's speech rights, which... seems odd to me.
7.13.2007 7:32pm
Smokey:
Is there legislation stating that 'colleges shall make no law...'?

Absent a specific law, the 1st Amendment just applies to Congress.

Doesn't it?
7.13.2007 8:04pm
Dilan Esper (mail) (www):
Professor Volokh:

So your contention is that there is no injury here? I can see that creating a standing problem-- the newspaper didn't suffer a cognizable injury as a result of the school's action-- but if the motivation of the action was to silence the newspaper's speech, I would still think that it would be a First Amendment violation; the question would be whether there was a plaintiff with Article III standing to bring the action.
7.13.2007 8:24pm
Mark Field (mail):
There's an interesting historical example of Congress frustrating another 1st A right, namely the right to petition: the gag rule in effect from 1836-44. It never got tested in court, though. Perhaps today we'd just consider it undignified for Congress to behave like a 5 year old, stuffing its ears and shouting loudly "I'm not listening to you!!!!".
7.13.2007 8:25pm
David M. Nieporent (www):
Dan Hamilton: this was closer to the Homecoming than to an election. It's student government, not real government.

But in any case, "against the First" is too vague. Whose 1st amendment rights are violated?
7.13.2007 9:27pm
glangston (mail):
What was the name of the Student Newspaper, Isvestia?

Seems like a monopoly. How does that co-exist with Freedom of the Press or Free Speech?
7.13.2007 9:48pm
Eugene Volokh (www):
Dilan Esper: Yes, I don't see a First Amendment violation here -- not all government action that is motivated by a desire to chill someone's speech is a First Amendment violation. In particular, when the government action does not imprison, fine, deny funding to, or otherwise tangibly punish a speaker, I don't think it violates the speaker's First Amendment rights.
7.13.2007 10:34pm
Anon Y. Mous:
I'm not familiar with how student newspapers are organized and operated, but if they can be thought of as being owned by the student body collectively, then the president's action of punishing the students collectively by canceling their elections based on their speech would be a violation of their first amendment rights.
7.13.2007 11:45pm
Elliot123 (mail):
Dilan: "However, suppose that the government says "if you continue to speak out against the Iraq War, we will use the eminent domain power to force you out of your house; we'll compensate you and use the property to build a new federal building, so it's fully constitutional and you can't complain."

General Hershey was head of the Selective Service during the Viet Nam war, and threatened to draft guys who were protesting against the war first. He didn't get away with it, but it caused a good deal of uproar for a while.
7.14.2007 12:48am
NickM (mail) (www):
I think the decision is poorly reasoned, but I do believe this action by the university violates the free speech rights of the editors of the newspaper (I'm not dealing with the qualified immunity issue here). It is those persons, not the entity, who make decisions and engage in speech. Here, they were told that the continuation of their ability to cast votes in student government elections was dependent on their forbearance from speech on a matter of public concern. While this ability is in the nature of a privilege rather than a right, government authority to withhold privileges in this fashion and for these reasons is constitutionally constrained.

Nick
7.14.2007 4:45am
davod (mail):
"The university president thought this was unfair and a violation of student government election rules, so she canceled the election, suggesting that she would cancel future elections if the student newspaper made similar endorsements in the future. "

Was the newspaper in violation of the student government election rules?, and did the President have the authority under the rule(or any other university rules) to act the way she did.
7.14.2007 11:00am
tarheel:

Is there legislation stating that 'colleges shall make no law...'?

Absent a specific law, the 1st Amendment just applies to Congress.

State action is state action. The First Amendment (via the 14th Amendment) applies to a state university. Now whether college students actually have First Amendment rights is probably an open question (sarcasm alert). See, e.g., discussions here on comments by Stanley Fish.
7.14.2007 1:11pm
Elliot123 (mail):
Who is the publisher of a college newspaper?
7.14.2007 1:15pm
tarheel:

Who is the publisher of a college newspaper?

It varies from school to school. Some or most are funded (therefore, I guess, "published") by the school. Others have gone independent and fund themselves on ad dollars. The closer question is the paper that funds itself but uses university space for its offices.
7.14.2007 1:21pm
arbitraryaardvark (mail) (www):

Dilan Esper: No doubt that taking your property because of your speech is unconstitutional. But here the university president didn't take anything from the newspaper, or otherwise penalize the newspaper -- it only frustrated the realization of the newspaper's political goals.

Plaintiffs included individuals who had run in the election and won. The president then invalidated the election.The other plaintiffs had voting rights and rights of political association which were interfered with. There is unmistakable injury in fact and standing. Now, maybe the state action was a justified response to the paper's use of student fees to fund electioneering. Or maybe not.
But it's not a general case of "frustration of purpose." It's a specific case of abrogating an election these plaintiffs had won. If, say, Obama wins the next election and Bush decides to invalidate that and have a do-over, First Amendment concerns would be implicated.
7.14.2007 4:13pm
hey (mail):
It seems what we have here is an inappropriate court hearing this case. It would likely be an improvement if the students were to pursue a civil case in state court for violations of the contract between students and administration.

The case appears to be in the Lawrence v Texas realm of very stupid things done by a state actor that probably should still be constitutional. Just like how courts are supposed to let corporate boards alone to make business judgements, no matter how ill-conceived or subsequently disastrous. The problem is that a Federal Civil Rights case was by far the easiest club to hand, if not the only realistic one.

Most schools that I am familiar with have the Student Newspaper and the Student Government set up as separate corporations that are independent from the university. They receive funding from the student activity fees, but this is usually accomplished by several specific fees targeted to the various corporations - government fee, paper fee, radio fee, PIRG fee, etc. All of these are recoverable, but few do thanks to the minute individual amounts, and this allows them to be reasonably free from the University. Some student governments even own the student center building to reinforce their independence.

This is another, though fairly benign, example of how University Presidents are too protected. They are essentially irremoveable, even if they aid and abet the slander and libel of 44 students and the attempted railroading of three students into 30+ year prison terms. University Professors and Presidents decry the insulation of corporate officers, but do nothing about the beam of tenure nor the travesty of billion dollar operations accountable only to the tenured inmates running the asylum.
7.14.2007 5:26pm
David M. Nieporent (www):
If, say, Obama wins the next election and Bush decides to invalidate that and have a do-over, First Amendment concerns would be implicated.
Certainly there would be a cause of action, but surely not a First Amendment cause of action.
7.14.2007 7:40pm
Dilan Esper (mail) (www):
Professor Volokh:

Arbitraryardvark gets at half of it-- some of the plaintiffs were people who ran in the canceled election. But I would also argue that if the government acts to deprive you of a result you are seeking in the political process, on the basis of your speech, that IS an injury. Your position begs the question-- you assume that just because the injury alleged is unorthodox, it can't be a First Amendment violation when it is imposed on the basis of one's political expression.

Again, I am open to an argument that you need a more tangible injury than this to have standing to sue, but if the government harms you in any way based on the viewpoint of your political expression, and the speech doesn't fall within a category which deprives it of First Amendment protection under the circumstances, that's a First Amendment violation.
7.14.2007 11:06pm
TruePath (mail) (www):
It seems to me that the issue is this: The first amendment generally bars the government from making the receipt of government benefits contingent on speaking/not speaking a certain way. Even though the government could stop funding welfare completely, change the system so totally different people received it or (perhaps) even dole out welfare only to groups they liked they could not make welfare payment conditional on not protesting a war or advocating for the legalization of drugs. It could not even take away someones welfare benefits for appearing on a government funded public radio station and advocating the legalization of drugs.

So it seems to me that this decision is at least not absurd.
7.14.2007 11:43pm
ReaderY:
If the University decided it would rather have a course on Kurt Vonnegart then Shakespeare because it didn't think the state of academic Shakespeare criticism sufficiently hip, could Shakespeare academics sue on grounds that, because the University cancelled their course because it didn't like their speech, it violated their First Amendment rights?
7.15.2007 3:09am
Bill Dyer (mail) (www):
Ms. Esper: The majority opinion states that some of the candidates were also editors. I don't think it's certain that any of them were among the named plaintiffs. The majority opinion doesn't discuss anyone's rights as a candidate, nor identify, as among the impacts justifying a finding of a First Amendment violation and appropriate relief, any effect on future candidates choosing to run or being elected. All 39 candidates who won in the original, voided election also won in the replacement election held a week later. And among the extremely speculative harms postulated by the plaintiffs, apparently no one said anything like, "I would have run in 1999, but chose not to because I was intimidated by what the college president did in 1997."

Another grave flaw in the majority opinion — not commented upon by Prof. V, nor (of course) by Chief Judge Jacobs' dissent — is that because this was a summary judgment proceeding, key questions of intent ought not have been treated as having been resolved. You write, for example, that "that if the government acts to deprive you of a result you are seeking in the political process, on the basis of your speech, that IS an injury." But that wasn't the stated intent of the college president, nor had a jury found that it was the hidden intent.

Indeed, I'm hard pressed to see any factual allegations that a reasonable jury could use to infer that intention. If the college president's overriding goal was for one side to lose, why'd she override members of her own administration in ordering the immediate (pre-election) release of the impounded newspapers endorsing that side? And if that was her intention, she was obviously spectacularly ineffective in achieving it. Judge Calabresi (or more likely, one of his law clerks who, like him, has little or no practical trial court procedural experience) lifts language from the college president's deposition and then spins it, reciting it as if it conclusively shows bad motive. Well, it doesn't. It shows good motive — trying to ensure a fair election — in which the college president misread and therefore misapplied college rules that actually (according to the courts, after the fact) permit one group of students to use a student-fee funded periodical to make a massive just-pre-election endorsement of their own members.

Unless the lawyers from the NYAG's office are total putzes, they should still win this case before a jury.
7.15.2007 10:48pm
AnonAnon:
"In particular, when the government action does not imprison, fine, deny funding to, or otherwise tangibly punish a speaker, I don't think it violates the speaker's First Amendment rights." (emphasis added)

But does it have to be the speaker that is punished?

What if a government official retaliates against a speaker by punishing non-speaker third parties (for example, by nullifying the results of an election in which those third parties won office), knowing that the speaker will be deterred by the effect on the third party?

Take the eminent domain example: City Mayor says "if you continue speaking out against my administration, I'll use the power of eminent domain to seize the homes of your friends and relatives." Couldn't this violate the speaker's first amendment rights, despite the speaker himself losing no rights or property?

If that's true, then what about this case, where the University essentially said "if you keep speaking out in ways that we disapprove of we will retaliate against candidates that you support"?
7.16.2007 8:12am
Edward A. Hoffman (mail):
In response to a comment by Dilan Esper, Bill Dyer writes:
Ms. Esper: The majority opinion states . . . .
Just FYI, Dilan is a Mr., not a Ms..
7.16.2007 3:32pm