Over the years, elite institutions shifted from fostering open debate to enforcing ideological conformity. But as guest Ilya Shapiro puts it, “the pendulum is swinging back.”
It's always a pleasure to listen to this podcast. Interesting to hear about the free speech issues within the legal space. I've seen this type of culture at my high school but I didn't realize how far that spread.
The copious SCOTUS precedent being flouted by Mr. Shapiro and the judges he supports stated principles such as those emphasized or re-emphasized in Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995) (citations omitted):
"It is axiomatic that [as a general rule] the government [judges] may not regulate speech based on its substantive content or the message it conveys. In the realm of private speech or expression, government [judicial] regulation may not favor one speaker over another. Discrimination [by judges] against speech because of its message is presumed to be unconstitutional. . . . When the government [a judge] targets not [only] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government [judges] must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
SCOTUS emphasized that the foregoing compelled the conclusion "that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression." The same principle and precedent preclude judges from discriminating against students based on their association (i.e., being at a university) with other students, faculty or administrators whose viewpoint(s) the judges just don't like.
Even in the forum in which federal courts were assigned the duty and delegated the power to regulate speech (i.e., time, place and manner in court proceedings (not on college campuses)), federal judges clearly and irrefutably have no power whatsoever to discriminate against anyone based on any political or religious viewpoint (much less based on mere association (merely being at the same university) with people who espouse a particular political or religious viewpoint).
It turns out that Mr. Shapiro didn't avoid supporting judges attacking and undermining our freedom of expression and freedom of association. The transcript of the interview (for which FIRE provided a link) included the following statements by Mr. Shapiro about the illegal extrajudicial retaliation and discrimination by federal judges:
"[It was] expanded to Columbia after their failed response to the antisemitic encampments and disruptions and all that. Yeah, I support that. Jim Ho, the 5th Circuit judge is a friend of mine. . . . Jim Ho’s a mensch. And Lisa Branch from the 11th Circuit. I think they’re the only ones who publicly put their name on the boycott joined by a dozen district judges. . . . I support that because, first of all, it’s prospective."
Article III clearly did not vest in any federal court (much less any individual judge) any power to inflict "prospective" punishment on students for exercising their freedoms of religious or political expression or association. This is far from a novel issue.
Even Courts (and even more so mere individual judges) “may not prohibit” (much less inflict extrajudicial punishment on) constitutionally-protected “modes of expression and association” even by invoking the general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. 415, 428-429 (1963). “[I]t is no answer” to the First Amendment that “the purpose of” any “regulations” (court rules or rulings or letters from judges) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439.
Courts (and especially individual judges) “may not, under the guise of prohibiting [even] professional misconduct, ignore” (knowingly violate) “constitutional rights” (as they did). Id. Courts (and especially individual judges) “cannot foreclose the exercise of constitutional rights by mere labels,” e.g., attorney, discipline, judge or so-called viewpoint diversity. Id. at 429. No “regulatory measures” (court rule or ruling or letter from judges), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” law students' or attorneys' “exercise of First Amendment rights.” Id. at 439.
Federal courts clearly never were given any power to retaliate or discriminate against law students because of their associations with or opposition to any university, religion or political policies. Federal judges especially clearly never were given any such power to use any extrajudicial punishment or by announcing discriminatory hiring practices.
Justice Jackson famously emphasized this point in a famous SCOTUS decision specifically emphasizing First Amendment rights and freedoms of students at schools. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 641 (1943):
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
See also Barnette at 638:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
As a result of the foregoing, SCOTUS emphasized that it is a "fixed star in our constitutional constellation" that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. "
This time, Mr. Shapiro may have avoided directly mentioning federal judges' attacks on freedom of expression and freedom of association of students at universities. But he was not so cautious in a recent interview in which he purported to defend federal judges' boycotts of Stanford, Yale and Columbia students. Mr. Shapiro said he thought those boycotts by federal judges were just fine because the judges' discrimination and retaliation was "prospective." Mr. Shapiro destroyed his own credibility in my eyes. He proved his purported defense of our First Amendment rights and freedoms was not principled but partisan. Mr. Shapiro seems to have no qualms about blatantly lawless (clearly unconstitutional) cancel culture among so-called conservative federal judges.
The federal judges are abusing extrajudicial retaliation--abusing the power and influence of federal courts and federal judges outside of the carefully limited scope of judicial jurisdiction (powers) that We the People vested in federal courts in our Constitution. Those judges clearly violated Article III (limited powers of federal judges) and Amendments I, V and X, as well as Article VI ("no religious Test"). They did so expressly and specifically to attack and undermine our freedom of expression and freedom of association. They did so because of the content and viewpoint of political and religious expression.
They used extrajudicial punishment to attack one side in a fight between (at least) two fighting faiths. They expressly sought to repress and punish particular "viewpoints on campuses," including what they vaguely referred to as "anti-semitism." "As a result" of such "viewpoints," a gang of federal judges presumed to decree an extrajudicial punishment: "Columbia" is "disqualified" from "educating the future leaders of our country" and "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024."
The gang of judges illegally imposed their extrajudicial punishment specifically and expressly to change the "Viewpoint" of "the faculty and across the administration—including the admissions office." They specifically and expressly sought and seek to attack and undermine the freedom of expression and freedom of association that is secured by our First Amendment and copious SCOTUS precedent that clearly and emphatically precluded any viewpoint discrimination by public officials (public servants).
No federal judge (or any commentator) ever did or ever can prove that our Constitution vested federal judges with the power to retaliate (especially outside of court proceedings) against students because of any student's own political or religious viewpoints or because of any student's association with any other students, faculty or administrators of any university (or any other analogous association).
When our Constitution and Bill of Rights were written and ratified, every American institution of higher learning of any note was entirely or nearly dominated by a particular religious and political viewpoint. That certainly was true of Harvard, Princeton and Columbia.
Shapiro's defense of the demolition of TikTok is a disgrace. How far is it from attacking free expression in the name of national security to attacking it in the name of moral righteousness? One can only imagine what his position would have been when Wilson was shredding rights in the name of security. Is there more evidence that TikTok is a threat than that Japanese-Americans were a threat when FDR imprisoned them?
Mr. Shapiro and the judges he supports as they all attack and undermine our freedoms of expression and association should consider James Madison's rebuke of President George Washington for publicly denouncing Democratic-Republican Societies in 1794.
Madison emphasized "the President" committed "perhaps the greatest error of his political life."
Madison also explained why: “no two principles can be either more indefensible in reason, or more dangerous in practice” than the pretense that our Constitution somehow gave public officials (public servants) the power to use “arbitrary denunciations” to “punish what the law permits.” With such unconstitutional measures “the Govt. may stifle all censures” on its own “misdoings; for if [people exercising political power are allowed to be] the Judge [they] will never [accept that] any censures [by mere citizens are] just.” James Madison to James Monroe, 4 December 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0306.
Madison emphasized that if public officials "can suppress censures flowing from one lawful source," then they "may [suppress] those flowing from any other [source]—from the press and from individuals as well as from Societies, &c." Id. If public officials have the power to suppress any viewpoint, then they have the power to suppress any viewpoint they choose to target. Our Constitution precludes any such pretense or presumption.
Madison emphasized that President Washington's "denunciation of these Societies" (by which citizens exercised rights and freedoms secured by the First Amendment) was an "attack on the most sacred principle of our Constitution and of Republicanism." James Madison to Thomas Jefferson, 30 November 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0303.
Jefferson subsequently decried as a "reign of witches" the abuses of power by federal judges (and other federal officials) discriminating and retaliating against people for their political viewpoints. Thomas Jefferson to John Taylor, 4 June 1798 at https://founders.archives.gov/documents/Jefferson/01-3002-0280.
One such judge was SCOTUS Justice Samuel Chase, who was impeached by the House and nearly convicted and removed from office by the Senate because Justice Chase abused his position to retaliate against people for their political speech, in part, by knowingly denying them due process of law. Those same tactics are being abused by the judges that Mr. Shapiro supports.
Please invite Mr. Shapiro and the judges who are discriminating and retaliating against students and university associations to try to show (in this forum) how they could even begin to believe that such abuse of power by federal judges was authorized by our Constitution.
Even if they ignore (as they did) the past 100 years of opinions of SCOTUS justices emphasizing and elaborating on our freedom of and from religion, our freedom of speech and press and our freedom of association, how could they believe the plain text of our Constitution permitted federal judges to discriminate against students at Stanford, Yale or Columbia for their "viewpoint" about any political or religious subject at issue or because of their mere association with other students, faculty or administrators at any university?
Article I emphasized that no federal official could exercise any power unless it was both "necessary and proper" in view of the purposes of our Constitution (e.g., in the Preamble). That especially clearly applies to these judges because they all are employed by courts created by Congress, so they clearly cannot have powers (to use extrajudicial punishment to regulate thought and speech on college campuses) which Congress clearly could not give them.
Article III expressly emphasized everything to which the "judicial power of the United States" could "extend." Such extent clearly did not include the power to regulate (much less extrajudicially punish) any religious or political viewpoint at anything like Stanford, Yale or Columbia or any student's decision to associate with student, faculty or administrators at Stanford, Yale or Columbia.
Amendment V emphasized that federal judges had no power to deprive any "person" of any "liberty" or any "property" except after affording them all "due process of law" (in court proceedings that comply with our Constitution and federal law, including federal rules of procedure and evidence).
Amendment X emphasized that federal courts and judges could have no "powers" except those that were "delegated to the United States by the Constitution."
Amendment I expressly and specifically emphasized that federal courts and judges definitely were not delegated any power "respecting an establishment of religion, or prohibiting the free exercise thereof" or power to "abridg[e] the freedom of speech" and "press" or "the right of the people peaceably to assemble."
So how can federal judges (or Mr. Shapiro) even actually believe that federal judges were given any power to use their threat and denunciation in a letter to regulate or punish any religious or political viewpoint at Stanford, Yale or Columbia (or any analogous association) or punish any student's decision to associate with other students, faculty or administrators at such universities? How could they believe that the discrimination and retaliation at issue by federal judges was either necessary or proper to fulfill any legitimate court function? How, in this day, could they even believe that federal judges were given the power to use deliberate discrimination (and even extrajudicial punishment) to enforce "diversity" at a university?
It's always a pleasure to listen to this podcast. Interesting to hear about the free speech issues within the legal space. I've seen this type of culture at my high school but I didn't realize how far that spread.
Thanks for listening, Margo!
The copious SCOTUS precedent being flouted by Mr. Shapiro and the judges he supports stated principles such as those emphasized or re-emphasized in Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995) (citations omitted):
"It is axiomatic that [as a general rule] the government [judges] may not regulate speech based on its substantive content or the message it conveys. In the realm of private speech or expression, government [judicial] regulation may not favor one speaker over another. Discrimination [by judges] against speech because of its message is presumed to be unconstitutional. . . . When the government [a judge] targets not [only] subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government [judges] must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
SCOTUS emphasized that the foregoing compelled the conclusion "that the government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression." The same principle and precedent preclude judges from discriminating against students based on their association (i.e., being at a university) with other students, faculty or administrators whose viewpoint(s) the judges just don't like.
Even in the forum in which federal courts were assigned the duty and delegated the power to regulate speech (i.e., time, place and manner in court proceedings (not on college campuses)), federal judges clearly and irrefutably have no power whatsoever to discriminate against anyone based on any political or religious viewpoint (much less based on mere association (merely being at the same university) with people who espouse a particular political or religious viewpoint).
It turns out that Mr. Shapiro didn't avoid supporting judges attacking and undermining our freedom of expression and freedom of association. The transcript of the interview (for which FIRE provided a link) included the following statements by Mr. Shapiro about the illegal extrajudicial retaliation and discrimination by federal judges:
"[It was] expanded to Columbia after their failed response to the antisemitic encampments and disruptions and all that. Yeah, I support that. Jim Ho, the 5th Circuit judge is a friend of mine. . . . Jim Ho’s a mensch. And Lisa Branch from the 11th Circuit. I think they’re the only ones who publicly put their name on the boycott joined by a dozen district judges. . . . I support that because, first of all, it’s prospective."
Article III clearly did not vest in any federal court (much less any individual judge) any power to inflict "prospective" punishment on students for exercising their freedoms of religious or political expression or association. This is far from a novel issue.
Even Courts (and even more so mere individual judges) “may not prohibit” (much less inflict extrajudicial punishment on) constitutionally-protected “modes of expression and association” even by invoking the general “power to regulate the legal profession.” NAACP v. Button, 371 U.S. 415, 428-429 (1963). “[I]t is no answer” to the First Amendment that “the purpose of” any “regulations” (court rules or rulings or letters from judges) “was merely to insure high professional standards.” Id. at 438-439. First Amendment “liberties,” including “speech, press, or association” are “indispensable.” Id. at 439.
Courts (and especially individual judges) “may not, under the guise of prohibiting [even] professional misconduct, ignore” (knowingly violate) “constitutional rights” (as they did). Id. Courts (and especially individual judges) “cannot foreclose the exercise of constitutional rights by mere labels,” e.g., attorney, discipline, judge or so-called viewpoint diversity. Id. at 429. No “regulatory measures” (court rule or ruling or letter from judges), “no matter how sophisticated,” can “be employed in purpose or in effect to stifle, penalize, or curb” law students' or attorneys' “exercise of First Amendment rights.” Id. at 439.
Federal courts clearly never were given any power to retaliate or discriminate against law students because of their associations with or opposition to any university, religion or political policies. Federal judges especially clearly never were given any such power to use any extrajudicial punishment or by announcing discriminatory hiring practices.
Justice Jackson famously emphasized this point in a famous SCOTUS decision specifically emphasizing First Amendment rights and freedoms of students at schools. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 641 (1943):
"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
See also Barnette at 638:
"The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
As a result of the foregoing, SCOTUS emphasized that it is a "fixed star in our constitutional constellation" that "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. "
This time, Mr. Shapiro may have avoided directly mentioning federal judges' attacks on freedom of expression and freedom of association of students at universities. But he was not so cautious in a recent interview in which he purported to defend federal judges' boycotts of Stanford, Yale and Columbia students. Mr. Shapiro said he thought those boycotts by federal judges were just fine because the judges' discrimination and retaliation was "prospective." Mr. Shapiro destroyed his own credibility in my eyes. He proved his purported defense of our First Amendment rights and freedoms was not principled but partisan. Mr. Shapiro seems to have no qualms about blatantly lawless (clearly unconstitutional) cancel culture among so-called conservative federal judges.
The federal judges are abusing extrajudicial retaliation--abusing the power and influence of federal courts and federal judges outside of the carefully limited scope of judicial jurisdiction (powers) that We the People vested in federal courts in our Constitution. Those judges clearly violated Article III (limited powers of federal judges) and Amendments I, V and X, as well as Article VI ("no religious Test"). They did so expressly and specifically to attack and undermine our freedom of expression and freedom of association. They did so because of the content and viewpoint of political and religious expression.
They used extrajudicial punishment to attack one side in a fight between (at least) two fighting faiths. They expressly sought to repress and punish particular "viewpoints on campuses," including what they vaguely referred to as "anti-semitism." "As a result" of such "viewpoints," a gang of federal judges presumed to decree an extrajudicial punishment: "Columbia" is "disqualified" from "educating the future leaders of our country" and "we will not hire anyone who joins the Columbia University community—whether as undergraduates or law students— beginning with the entering class of 2024."
The gang of judges illegally imposed their extrajudicial punishment specifically and expressly to change the "Viewpoint" of "the faculty and across the administration—including the admissions office." They specifically and expressly sought and seek to attack and undermine the freedom of expression and freedom of association that is secured by our First Amendment and copious SCOTUS precedent that clearly and emphatically precluded any viewpoint discrimination by public officials (public servants).
No federal judge (or any commentator) ever did or ever can prove that our Constitution vested federal judges with the power to retaliate (especially outside of court proceedings) against students because of any student's own political or religious viewpoints or because of any student's association with any other students, faculty or administrators of any university (or any other analogous association).
When our Constitution and Bill of Rights were written and ratified, every American institution of higher learning of any note was entirely or nearly dominated by a particular religious and political viewpoint. That certainly was true of Harvard, Princeton and Columbia.
Shapiro's defense of the demolition of TikTok is a disgrace. How far is it from attacking free expression in the name of national security to attacking it in the name of moral righteousness? One can only imagine what his position would have been when Wilson was shredding rights in the name of security. Is there more evidence that TikTok is a threat than that Japanese-Americans were a threat when FDR imprisoned them?
Mr. Shapiro and the judges he supports as they all attack and undermine our freedoms of expression and association should consider James Madison's rebuke of President George Washington for publicly denouncing Democratic-Republican Societies in 1794.
Madison emphasized "the President" committed "perhaps the greatest error of his political life."
Madison also explained why: “no two principles can be either more indefensible in reason, or more dangerous in practice” than the pretense that our Constitution somehow gave public officials (public servants) the power to use “arbitrary denunciations” to “punish what the law permits.” With such unconstitutional measures “the Govt. may stifle all censures” on its own “misdoings; for if [people exercising political power are allowed to be] the Judge [they] will never [accept that] any censures [by mere citizens are] just.” James Madison to James Monroe, 4 December 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0306.
Madison emphasized that if public officials "can suppress censures flowing from one lawful source," then they "may [suppress] those flowing from any other [source]—from the press and from individuals as well as from Societies, &c." Id. If public officials have the power to suppress any viewpoint, then they have the power to suppress any viewpoint they choose to target. Our Constitution precludes any such pretense or presumption.
Madison emphasized that President Washington's "denunciation of these Societies" (by which citizens exercised rights and freedoms secured by the First Amendment) was an "attack on the most sacred principle of our Constitution and of Republicanism." James Madison to Thomas Jefferson, 30 November 1794 at https://founders.archives.gov/documents/Madison/01-15-02-0303.
Jefferson subsequently decried as a "reign of witches" the abuses of power by federal judges (and other federal officials) discriminating and retaliating against people for their political viewpoints. Thomas Jefferson to John Taylor, 4 June 1798 at https://founders.archives.gov/documents/Jefferson/01-3002-0280.
One such judge was SCOTUS Justice Samuel Chase, who was impeached by the House and nearly convicted and removed from office by the Senate because Justice Chase abused his position to retaliate against people for their political speech, in part, by knowingly denying them due process of law. Those same tactics are being abused by the judges that Mr. Shapiro supports.
Please invite Mr. Shapiro and the judges who are discriminating and retaliating against students and university associations to try to show (in this forum) how they could even begin to believe that such abuse of power by federal judges was authorized by our Constitution.
Even if they ignore (as they did) the past 100 years of opinions of SCOTUS justices emphasizing and elaborating on our freedom of and from religion, our freedom of speech and press and our freedom of association, how could they believe the plain text of our Constitution permitted federal judges to discriminate against students at Stanford, Yale or Columbia for their "viewpoint" about any political or religious subject at issue or because of their mere association with other students, faculty or administrators at any university?
Article I emphasized that no federal official could exercise any power unless it was both "necessary and proper" in view of the purposes of our Constitution (e.g., in the Preamble). That especially clearly applies to these judges because they all are employed by courts created by Congress, so they clearly cannot have powers (to use extrajudicial punishment to regulate thought and speech on college campuses) which Congress clearly could not give them.
Article III expressly emphasized everything to which the "judicial power of the United States" could "extend." Such extent clearly did not include the power to regulate (much less extrajudicially punish) any religious or political viewpoint at anything like Stanford, Yale or Columbia or any student's decision to associate with student, faculty or administrators at Stanford, Yale or Columbia.
Amendment V emphasized that federal judges had no power to deprive any "person" of any "liberty" or any "property" except after affording them all "due process of law" (in court proceedings that comply with our Constitution and federal law, including federal rules of procedure and evidence).
Amendment X emphasized that federal courts and judges could have no "powers" except those that were "delegated to the United States by the Constitution."
Amendment I expressly and specifically emphasized that federal courts and judges definitely were not delegated any power "respecting an establishment of religion, or prohibiting the free exercise thereof" or power to "abridg[e] the freedom of speech" and "press" or "the right of the people peaceably to assemble."
So how can federal judges (or Mr. Shapiro) even actually believe that federal judges were given any power to use their threat and denunciation in a letter to regulate or punish any religious or political viewpoint at Stanford, Yale or Columbia (or any analogous association) or punish any student's decision to associate with other students, faculty or administrators at such universities? How could they believe that the discrimination and retaliation at issue by federal judges was either necessary or proper to fulfill any legitimate court function? How, in this day, could they even believe that federal judges were given the power to use deliberate discrimination (and even extrajudicial punishment) to enforce "diversity" at a university?