‘Religious Holidays Aren’t Represented Equally on Campus’ — a Catholic campus, that is

The Loyola [Chicago] Phoenix reports:

It’s that time of year again, and Loyola has decked out its buildings with decorations for the holiday season. But Christmas gets more attention on campus than other religious holidays.

Although Loyola fosters a space for non-Christian religions to practice their faith — such as in the Damen Student Center’s second floor of Ministry Offices for Muslim, Hindu and Jewish students — there is a lack of public festivity compared to Christmas, such as decorations and activities of other religions’ holidays the entire student body could be part of.

Roman Catholicism is the largest religious group on campus, according to Loyola’s undergraduate admissions’ latest report. The report said the 2016 first-year class identified as 60 percent Roman Catholic and 40 percent other — Jewish, Hindu, Muslim [about 800 students out of a student body of about 16,000 -EV], Protestant and Eastern Orthodox….

Sajid Ahmed, a 19-year-old Muslim student and prayer coordinator for the Muslim Student Association (MSA), said although the atmosphere of the Christmas season brings him happiness, he wishes Muslim holidays were just as prominent….

Recognizing smaller holidays like Bodhi day [a Buddhist holiday] is important to Loyola, which desires intellectual diversity, according to Shweta Singh, associate professor in the school of social work and adviser of HSO.

“People should at least know about [other holidays],” Singh said. “They’re smaller festivals, but they’re not small to the people celebrating them.”

Singh said it’s the responsibility of both student organizations representing other faiths and cultures and the university to publicly celebrate as many religious holidays on campus as possible.

Here’s my thinking, as a non-Christian myself:

1. Both public universities and private universities that aspire to serious and cosmopolitan intellectual life should be treating students of minority religions equally. But it doesn’t follow that they should commemorate the same way holidays that are an important part of the traditions of 90 percent of the students (both the Christians and the nonreligious who still grew up celebrating Christmas) as holidays that are important to 2 percent. A university might choose to do that for pedagogical reasons, to better acquaint students with the big world; or it might save such pedagogy for matters other than holiday decorations. No one should be entitled, though, to a particular mix of holiday celebrations. (Note that, while the establishment clause has been read as barring some religious displays by public universities, a great deal of secular traditions associated with Christmas, such as Christmas trees, lights, and the like, are permissible.)

2. But when it comes to identifiably religious universities — Catholic, Protestant, Jewish, Muslim or anything else — this is even more clear. Loyola keeping a Catholic identity helps promote real intellectual diversity in American public life (and, again, I’d say the same as to other religious universities; I can imagine some religious belief systems that are so pernicious that, while they must be constitutionally protected, we can still say they hurt American life more than they help it, but I think that most of the traditions that found universities do have a good deal to contribute).

I think it would be unwise, and contrary to the intellectual freedom needed for serious universities to thrive, for it to try to suppress other religious messages from students, student groups and others. It might even make sense to accommodate such other religious groups in various ways, and it sounds as though Loyola does. But when it comes to Loyola’s own messages, including its holiday decor, I think it’s good for Loyola to maintain a Catholic identity, and not to “celebrate” religious traditions to which it doesn’t subscribe. If that would remind me, as a nonreligious person or as an ethnic Jew, that it’s a university that’s identifiably Catholic, and that it doesn’t endorse my views (again, even though it doesn’t punish me for those views) — well, I think I should have known that all along.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/08/religious-holidays-arent-represented-equally-on-campus-a-catholic-campus-that-is/

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National injunction developments

A few developments on the national injunction should be noted.

First, on Nov. 30, a subcommittee of the House Judiciary Committee held a hearing on the national injunction. The other witnesses were Amanda Frost, Michael Morley and Hans von Spakovsky. The written testimony of each witness and a video recording of the hearing are available here. The statement by Rep. Bob Goodlatte, the chairman of the full committee, is available here.

Second, as of today, my article on the national injunction is in print: “Multiple Chancellors: Reforming the National Injunction.” I’m grateful to the many readers whose criticism made the piece stronger.

If you want to read more about the national injunction, I recommend several good treatments: this article and this article by Michael Morley, this forthcoming article by Zayn Siddique, and this recently published note by Getzel Berger. The intersection of the national injunction with other practices of the federal courts is considered in this piece by Andrew Bradt and Zachary Clopton (on Multi-District Litigation), and this piece by Kate Huddleston (on venue).

In addition, I’ve written about national injunctions repeatedly in this space, most recently a post on the argument that they are supported by the Administrative Procedure Act and a post on a defense of national injunctions by a district court judge.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/08/national-injunction-developments/

Delaware Supreme Court strikes down broad restrictions on gun possession in state parks and forests

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From Thursday’s Bridgeville Rifle & Pistol Club v. Small, a decision applying the Delaware Constitution’s right to bear arms:

We are asked whether unelected officials from the State’s parks and forest departments, whose power is expressly limited, can ban (except for a narrow exception for hunting) the possession of guns in state parks and forests in contravention of Delawareans’ rights under the State’s constitution. Clearly they cannot. They lack such authority because they may not pass unconstitutional laws, and the regulations completely eviscerate a core right to keep and bear arms for defense of self and family outside the home — a right this Court has already recognized. As such, the regulations are unconstitutional on their face. …

Article I, Section 20 of the Delaware Constitution … provides: “A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.” Although federal courts are still grappling with whether there exists a Second Amendment right to carry a firearm outside the home, our Court settled the issue under our own constitution in our unanimous, en banc opinion in Doe v. Wilmington Housing Authority, by holding that, “[o]n its face, the Delaware provision is intentionally broader than the Second Amendment and protects the right to bear arms outside the home, including for hunting and recreation.” We stated that, though not unlimited, Section 20 protects a core right of “defense of self and family in addition to the home” (as all parties here concede).

But despite this constitutional requirement, the first of the challenged regulations, Delaware’s Department of Natural Resources and Environmental Control (“DNREC”) Regulation 9201-21.1, provides:

It shall be unlawful to display, possess or discharge firearms of any description, air rifles, B.B. guns, sling shots, or archery equipment upon lands or waters administered by the Division, except with prior written approval of the Director.

Similarly, Section 8.8 of Delaware’s Department of Agriculture (“DOA”) Hunting Rules and Regulations provides:

Target shooting is prohibited. Firearms are allowed for legal hunting only and are otherwise prohibited on State Forest lands.

In effect, the DOA, whose Forest Service oversees the approximately 18,000 acres of Delaware’s three state forests …, also completely bans firearms with a limited exception for legal hunting, which may be pursued only if licensed and selected by lottery to use one of the specifically designated stands. … As under the DNREC regulation, because possession of firearms is banned, the DOA regulation acts as a total ban on carrying firearms for self-defense.

The Superior Court upheld the DNREC and DOA regulations (collectively, the “Regulations”) as it believed that they were substantially related to achieving the “important governmental objective of keeping the public safe from the potential harm of firearms in State Parks and Forests” and that the Regulations did not impose an undue burden on Appellants’ Section 20 constitutional rights. But this Court rejected precisely that sort of “general safety concern” justification as insufficient to uphold such regulations in Doe.

And the Superior Court’s determination that the Regulations do not unduly infringe on Appellants’ Section 20 constitutional rights because they “remain free to hunt on State lands in accordance with the reasonable restrictions in place” wrongly presumes that the ability to exercise just part of one’s Section 20 rights (connected to hunting, at limited times) is an adequate substitute for eliminating the core Section 20 right of self-defense entirely in State Parks and Forests. The Superior Court’s decision fails to appreciate that the ability to exercise Section 20’s fundamental rights must be meaningful and that the State must preserve an avenue for carrying out Section 20’s core purposes, which includes the right of possession of lawful firearms for self-defense, including outside the home.

The Superior Court’s opinion does not address the express Section 20 right to bear arms for self-defense except to observe that, “the need to respond to a threat with a firearm is diminished when firearms are prohibited in the area,” and that Appellants’ “right to bear arms to protect themselves if the need for self-defense arises is not hindered but, rather, aided in effect by the presence of the Regulations.” But that conclusion is premised on the questionable notion — unsupported by reference to any evidence — that outlawing possession of firearms in an area makes law-abiding citizens safer because criminals will, for some reason, obey the Regulations.

The limited ability to have a hunting rifle or shotgun while engaged in a controlled hunt on state park or forest land does not fulfill — and cannot substitute for — the people’s right to have a firearm for defense of self and family while camping overnight in a State Park or hiking in the more remote acres of State Forests (assuming compliance with all other laws governing guns). The Regulations not only unduly burden that constitutional right, but eviscerate it altogether.

We acknowledged in Doe that the right to carry a firearm for self-defense is not absolute and may be restricted. For example, the State validly prohibits felons from possessing deadly weapons and limits possession of concealed deadly weapons outside the home to people who hold permits. The issue here is not whether the government may regulate firearms, but whether DNREC and DOA (the “Agencies”) can justify a near total ban on the right to possess a lawful gun to defend one’s self and family with a firearm in Delaware’s State Parks and Forests. The Agencies not only fail to justify such sweeping regulations, but fail to show that they had the authority to enact such unconstitutional regulations in the first place. …

The Seventh Circuit observed that “when a state bans guns merely in particular places, such as public schools, a person can preserve an undiminished right of self-defense by not entering these places[.]” The Agencies make the same argument here. But, here, the Regulations’ sweeping restrictions impose a total ban that forces Delaware citizens to choose between enjoying our more than 23,000 acres of State Parks and 18,000 acres of Forests on the one hand, and sacrificing what this Court has already unanimously held to be a constitutional right to public carry for defense of self and family on the other. State Parks and State Forests also present a far different “place restriction” than one limiting possession of firearms in a school or courthouse — traditional “sensitive places,” where the courts in D.C. Heller and Doe suggested that restrictions might be constitutional.

Although there certainly could be some “sensitive” areas in State Parks and State Forests where the carrying of firearms may be restricted, as is done in certain areas of National Parks, there is no record here that the State has undertaken any effort to delineate such areas so as not to infringe on Section 20 rights. Further, there are several differences between parks and forests and traditional sensitive places that make the State’s Regulations’ blanket prohibitions problematic. In contrast to a permissible sensitive place such as a courthouse, where visitors are screened by security, most State Parks and State Forests do not have controlled entry points. One can easily enter a State Park or State Forest with a weapon — either intentionally or by inadvertently wandering across a State Park boundary while exercising the right to open carry or licensed concealed carry.

Whereas courthouses are supervised by law enforcement personnel or easily accessible to law enforcement and other emergency responders, making the need to defend oneself with a personal firearm seemingly less acute, State Parks and State Forests are relatively remote and, for example, have less than thirty rangers to police Delaware’s entire State Parks. In fact, the DOA’s Hunting Rules and Regulations specifically warn that the Forest Service is unable to offer protection: “Camping is at your own risk. … [T]here is no after-hours, nighttime or weekend security.” And, as this Court acknowledged in Doe, the rights of Delaware citizens to defend themselves with firearms is especially critical “when the intervention of society on their behalf may be too late to prevent injury.”

Responsible, law-abiding Delawareans should not have to give up access to State Parks and State Forests in order to enjoy their constitutional right to carry a firearm for self-defense. Our laws must leave such citizens some reasonable means of exercising their Section 20 constitutionally protected rights. A blanket place restriction effectuating a total ban on carrying for self-defense that takes no account of which areas are truly “sensitive” and which are not presents a situation where a facial challenge must succeed. …

Case law does not support the dissenters’ novel position, not even argued by the State, that the government may “regulate firearm possession and use on its own property, like any other proprietor may.” … [T]he distinction missed throughout the dissent is that, unlike private proprietors who are given more flexibility in certain circumstances, the State must comply with the Constitution when enacting laws and regulations that interfere with the exercise of fundamental rights on its property. …

Two of the five justices dissented:

When adopted [in 1987], no one thought Section 20 would affect existing laws and regulations, including these longstanding Regulations. And no one conceived or intended that Section 20 would bar the government from restricting firearms on state property. In amending the Delaware Constitution to adopt Section 20, the General Assembly did not intend to create new rights, repeal existing firearm laws, or limit its power to manage its own land. Rather, as the legislative history shows, the General Assembly intended to protect the status quo as it existed in 1987.

As we show, neither the text of Section 20 nor its history suggests that it altered the historical understanding that our state government, through our elected officials, could determine whether and when firearms could be possessed on state property, and who could possess them. Likewise, nothing in Section 20 or our history suggests that our state government cannot create Parks and Forests as havens for recreation, relaxation, and education where firearm possession and use is restricted.

No one has the right to bear arms on another’s property without their consent, and it was long recognized that the government could restrict possession in certain sensitive places, like Parks and Forests. …

But even if the Regulations prohibited conduct protected by Section 20, we would dissent. Under Heller and its progeny, the Regulations regulate sensitive areas, and thus are lawful. The notion that our government, as a proprietor, may determine that certain areas are sensitive and should be firearm-free was well understood in Delaware, and throughout the United States. …

The Regulations serve an important governmental purpose and do not burden appellants’ Section 20 rights more than necessary. When people come together in Parks and Forests for games and recreation, emotions can run high. When folks camp, they sometimes drink, including at events within the Parks like beer and wine festivals. When folks drink and carouse, they sometimes get jealous and angry. When folks play or attend sporting events, spirits run high and sometimes out of control. When folks get emotional around guns, things can get dangerous fast. When folks camp, there are no gun lockers, and they are near other visitors.

There are no natural boundaries in Parks and Forests signaling areas where park-goers can find safety from gunfire or natural barriers that stop flying bullets or arrows. These and other common sense reasons support the decisions of generations of governors and cabinet secretaries that the Regulations advance the public purposes served by our Parks and Forests, and facilitate the safe enjoyment of these public spaces by families and children.

The opinions add up to 143 pages, and include a hot debate on the individual rights view of the Second Amendment, the correctness of Heller and the Delaware Doe precedent, the right to carry guns under the Delaware Constitution, and more; I therefore provide just a few excerpts.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/07/delaware-supreme-court-strikes-down-broad-restrictions-on-gun-possession-in-state-parks-and-forests/

Delaware requires political party balance on state courts; First Amendment violation, says federal court

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The Delaware Constitution provides for judges appointed by the governor with the advice and consent of the state senate, but with limitations (first added in 1897) aimed at political party balance:

First, three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.

Second, at any time when the total number of Judges of the Superior Court shall be an even number not more than one-half of the members of all such offices shall be of the same political party; and at any time when the number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party, the remaining members of such offices shall be of the other major political party. [Similar provisions apply to the Family Court and the Court of Common Pleas. -EV]

Third, at any time when the total number of the offices of the Justices of the Supreme Court, the Judges of the Superior Court, the Chancellor and all the Vice-Chancellors shall be an even number, not more than one-half of the members of all such offices shall be of the same major political party; and at any time when the total number of such offices shall be an odd number, then not more than a bare majority of the members of all such offices shall be of the same major political party; the remaining members of the Courts above enumerated shall be of the other major political party.

Is this constitutional? The First Amendment generally bars political party discrimination in ordinary government employment but allows it in certain important positions, especially policymaking ones. (For instance, a governor certainly can select his cabinet members from only his own party, or, if he wants to, can deliberately try to get political balance.) But does an exception apply to a judge? On Wednesday, a federal district court held that the party balance requirement is unconstitutional:

Article IV, § 3 of the Constitution of the State of Delaware violates the First Amendment by placing a restriction on governmental employment based on political affiliation in the Delaware judiciary. The narrow exception of political affiliation does not apply because the role of the judiciary is to interpret statutory intent and not to enact or amend it. Precedent relied upon by defendant is highly distinguishable and not applicable to the current situation. Further, the Delaware Judges’ Code of Judicial Conduct clearly indicates that political affiliation is not a valued trait of an effective judiciary.

Here is more of the court’s reasoning; note that it doesn’t specifically focus on the law’s categorical exclusion of everyone who is politically independent, or adheres to a third party (which might have been a separate objection):

The United States Supreme Court has established that political belief and association are at the core of First Amendment protections. Governmental employees can not be terminated or asked to relinquish their “right to political association at the price of holding a job.” “Patronage … to the extent that it compels or restrains belief and association, is inimical to the process which undergirds our system of government and is at war with the deeper traditions of democracy embodied in the First Amendment.” This right of political affiliation has been expanded to government employees regarding their promotion, transfer, and hiring.

The “prohibition on encroachment of First Amendment protections is not absolute,” and an exception is recognized, which limits patronage dismissals to “policymaking positions,” and requires an analysis of the nature of the employee’s responsibilities. The United States Court of Appeals for the Third Circuit has found “a question relevant in all cases is whether the employee has meaningful input into decision making concerning the nature and scope of a major government program.” A “policymaking position” is a narrow exception applied when “the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”

The Court has recognized that “it is not always easy to determine whether a position is one in which political affiliation is a legitimate factor to be considered.” In Branti v. Finkel, the United States Supreme Court held that the position of Assistant Public Defender was not entitled to the “policymaker” exception. It found that the factors to be considered in determining whether a position is a policymaking position are whether the position is simply clerical, nondiscretionary or technical in nature, whether the employee “participates in Council discussions, or other meetings, whether the employee prepares budgets, or has authority to hire or fire employees, the salary of the employee, and the employee’s power to control others and to speak in the name of policymakers.” A difference in political affiliation is only a proper factor in making employee decisions if it is highly likely “to cause an official to be ineffective in carrying out the duties and responsibilities of the office.” Whether a position involves policy-making is a question of law.

Defendant contends that the role of the judiciary falls within the policymaker exception. … Defendant’s argument rests heavily upon the holdings by other circuit courts outside the Third Circuit, and the United States Supreme Court’s holding in Gregory v. Ashcroft. Plaintiff contends that the role of the judiciary is not a policymaking position and rests his argument upon a separation of powers, the role of the judiciary, and the Delaware Judges’ Code of Judicial Conduct.

The judiciary, although a very important role, is not a policymaking position. A judge does not provide “meaningful input into decision making concerning the nature and scope of a major government program.” To the contrary a judge’s role is “to apply, not amend, the work of the People’s representatives.” The court may not speak on policymakers behalf, sit in on Congressional discussions, or participate in policymaking meetings. The role of the judiciary is not to “hypothesize independently” legislative decision and intent. “Matters of practical judgment and empirical calculation are for Congress” and the judiciary has “no basis to question their detail beyond the evident consistency and substantiality.” Statutory interpretation, not statutory creation, is the responsibility of the judiciary and therefore, the position of judge is not a policymaking position.

Cases from other circuits, on which defendant relies, are distinguishable. [The cases] addressed situations which political affiliation could be considered, but was not constitutionally mandated. Neither case dealt with a constitutional provision requiring a political affiliation evaluation, nor a complete bar on hiring individuals with minority political party beliefs.

In addition, the Court in Gregory addressed the issue of interpreting legislative intent of an exception as it applied to the Age Discrimination in Employment Act for positions “on the policymaking level.” The Court addressed whether Congress intended the judiciary be included in the exception, and whether a Missouri law mandating that members of the judiciary retire at the age seventy was permissible under the Age Discrimination in Employment Act.

The Court specifically did not decide the issue of whether the judiciary was a policymaker, and based its holding on the rationale that “people … have a legitimate, indeed compelling, interest in maintaining a judiciary fully capable of performing the demanding tasks that judges must perform. It is an unfortunate fact of life that physical and mental capacity sometimes diminish with age. The people may therefore wish to replace some older judges.” Thus, the phrase “on the policymaking level” is not the equivalent of a “policymaking” position, on which employment decisions based on political affiliation may be made.

Delaware requirements are clear, that “[a] judge should be unswayed by partisan interest” and “family, social, or other relationships” should not influence their conduct or judgment.” In particular, Canon Four of the Delaware Judges’ Code of Judicial Conduct specifically addresses that the judiciary must refrain from political activity. A judge may not act as a “leader or hold any office in a political organization,” make speeches for political organizations or candidates, or “engage in any other political activity.” The Delaware Judicial Code clearly pronounces that political affiliation should not affect the position.

Political affiliation is not important to the effective performance of a Delaware judge’s duties. A Delaware judge may not participate in political activities, hold any office in a political organization, or allow political affiliation to influence his judgment on the bench. Since political affiliation in Delaware cannot “cause an official to be ineffective in carrying out the duties and responsibilities of the office,” it does not meet the standard for a “policymaking position.”

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/07/delaware-requires-political-party-balance-on-state-courts-first-amendment-violation-says-federal-court/

The First Amendment and bins solicitation clothing donations

Some Mayer Brown LLP colleagues of mine — Michael Scodro, Geoffrey Pipoly, Linda Shi and Christopher Ferro — and I have filed a cert. petition in Recycle for Change v. City of Oakland. I thought some of our readers would find it interesting.

Many cities throughout the country, including Oakland, Calif., regulate bins that solicit clothing donations. Several Supreme Court decisions have held that charitable solicitations (including ones conducted by for-profit fundraisers on behalf of charitable causes) are generally protected by the First Amendment; and some lower court decisions have held that restrictions on this sort of unattended solicitation are content-based speech restrictions and therefore violate the First Amendment. But the U.S. Court of Appeals for the 9th Circuit upheld the Oakland restriction, assuming without deciding that it was a speech restriction and concluding that it was content-neutral; we argue that this creates an important circuit split, and is inconsistent with the court’s charitable solicitation cases. Here’s a bit more detail from the petition, but read the whole thing if you’re interested:

1. Recycle for Change … is a California not-for-profit organization that maintains numerous unattended donation bins in municipalities throughout California. Recycle uses the bins to further its charitable mission through the collection of textiles. Donated items are recycled or resold by Recycle, and the ensuing revenue is used to fund various nonprofit efforts worldwide, particularly in low-income nations.

Recycle’s donation bins are placed on private property with the permission of the property owner. The revenue generated by the bins constitutes the bulk of Recycle’s income…. When suit was filed in the district court, Recycle maintained 63 bins throughout [Oakland] ….

3. … [An Oakland ordinance] singles out a subset of unattended collection receptacles for regulation. Specifically, the Ordinance applies only to “[u]nattended donation/collection boxes” (“UDCBs”) and to “UDCB operators.” The Ordinance defines “UDCB” to mean “unstaffed drop-off boxes, containers, receptacles, or similar facility that accept textiles, shoes, books and/or other salvageable personal property items to be used by the operator for distribution, resale, or recycling.” “UDCB operator” is defined as “a person or entity who utilizes or maintains a UDCB to solicit donations/collections of salvageable personal property.” …

[Recycle challenged the ordinance], observing that it conflicts with decisions from two Circuits, both of which held that similar ordinances were content based [restrictions on speech]. See Planet Aid v. City of St. Johns, 782 F.3d 318, 325-26 (6th Cir. 2015); Nat’l Fed’n of the Blind of Tex. v. Abbott, 647 F.3d 202, 212-13 (5th Cir. 2011). Although Oakland argued in its brief that the Ordinance was different from those in Planet Aid and Abbott because it applies equally to both for-profit and non-profit solicitation, Recycle pointed out that this is a distinction without a difference in light of the well- established rule that solicitation constitutes protected speech whether it is paid or unpaid. See, e.g., Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980); Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 961 (1984); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988).

The Ninth Circuit affirmed. It declined to adopt other Circuits’ conclusion that unattended donation bins are a form of speech or protected expression, instead “assum[ing] without deciding that the Ordinance triggers First Amendment analysis” only because Oakland had conceded the point.

The court then ruled that the Ordinance was not a content-based speech restriction for two reasons. First, the court reasoned that the Ordinance applies not only to donation bins soliciting charitable donations, but to any bin that “accepts personal items ‘for distribution, resale, or recycling.’” According to the Ninth Circuit, the fact that the Ordinance applies regardless of “why the UDCB operator is collecting the personal items, whether it be for charitable purposes or for-profit endeavors,” means that the Ordinance does not apply solely to expression protected by this Court’s decision in Schaumburg.

Second, the court ruled that the fact that an officer must examine the content of the speech to determine whether the Ordinance applies does not render the Ordinance content based….

You can also see the other side’s brief, our reply and an amicus brief.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/06/the-first-amendment-and-bins-solicitation-clothing-donations/

Horace, Google, Westlaw, and ‘pursuant’ vs. ‘pursuant to’

A former student emailed me to ask:

Is it proper to say “pursuant Section 30,” rather than “pursuant to Section 30?”

Google’s dictionary states that “pursuant” means “in accordance with,” so it seems like adding a preposition, e.g. “to,” is redundant.

And this reminded me of a lovely line from the ancient Roman poet Horace, who spoke about “the will of custom, in whose power is the decision and right and standard of language.” As with law, the life of language “has not been logic; it has been experience,” and while logic often influences custom, custom trumps. (That’s why we generally say “aren’t I?” even though logic suggests “amn’t I?,” and generally don’t say “is not he?” even though it’s logically identical to “isn’t he?”) We depart from custom at our peril; the reader might view such departures an errors (whether or not we would agree that they are), or at the very least may find them jarring and distracting. We don’t want readers to focus on our strange wording; we want them to absorb our substantive argument with as little distraction as possible.

My sense is that “pursuant to Section 30” is vastly more common than “pursuant Section 30”; but fortunately, these days, one doesn’t have to rely on one’s necessarily selective perception and memory in such matters. Instead, one can turn to Google Ngrams to search recent American English works for “pursuant to section” (red line) and “pursuant section” (blue line):

Or one can more generally search for “pursuant to” and “pursuant,” and see the small gap between the two lines (which represents works that use “pursuant” but not “pursuant to”):

And, if one is looking for legal custom, and thinks that the Google Ngrams corpus (published books) generally doesn’t have enough to be a good guide, one can search on Westlaw (especially if one has free access to Westlaw). A quick search through all cases for “pursuant to section” and date(aft 11/1/2017) finds 559 references in just the last month and change. A search for “pursuant section” and date(aft 11/1/2017) finds two. I feel that we have a winner.

Of course, there are complexities even here. In some situations, you might want to search only within cases in your court system, because some such customs vary geographically or even by jurisdiction. And of course, sometimes you want to use a fresh phrase, so long as it doesn’t sound awkward or ungrammatical, precisely because it’s not customary. But I’m pretty sure that “pursuant section 30” isn’t the place where you want to be creative.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/05/horace-google-westlaw-and-pursuant-vs-pursuant-to/

Emory University gets “green-light” free-speech rating from FIRE

The Foundation for Individual Rights in Education (FIRE) has given Emory University a “green light” status for its commitment to free speech and open expression on campus. The press release is reproduced below. Emory is one of only 37 universities nationwide to have that status, and the only one in Georgia.

It makes sense that Emory should be a green-light campus, because for the last five years, it’s been governed by the Respect for Open Expression Policy. That policy is interpreted and administered by the University Senate’s Committee for Open Expression, which I’m the chair of. Over the last few years, the Committee for Open Expression has interpreted the policy both informally and through a series of formal opinions, for instance our first one, where we defended the Open Expression rights of Emory Students for Justice in Palestine, and our second one, where we opined on the Donald Trump chalkings and related incidents. (Our more recent opinions can be found here and here.)

So, perhaps for some schools, earning a green light involves pushing back against some restrictive speech codes — but at Emory, it was really just a matter of cleaning up stray, outdated, or mistaken language. In my experience, Emory officials, from the president on down, have been very supportive of campus free speech, the Open Expression policy, and the work of the Committee. These changes were made because, once we became aware of problems with our policy language, there was broad consensus for making the necessary changes. (FIRE was the group that originally brought these problems to our attention, but anyone can do that. Personally, I like FIRE’s work, I have several friends on the staff and on the board of directors, and I’ve even contributed to them occasionally — but I understand that not everyone may feel the same way.)

In any event, I’m glad about our green-light rating, and I hope that other schools follow suit.

*     *     *

ATLANTA, Dec. 5, 2017 — Emory University has removed language from its policies that chilled free expression on campus, earning it the highest, “green light” rating for free speech on campus from the Foundation for Individual Rights in Education.

After working to ensure that the policies across all of its departments reflect the university’s commitment to free speech, Emory has become the first green light institution in the state of Georgia — and just the 37th institution nationwide to earn FIRE’s most favorable rating.

“We are excited to welcome Emory to the ranks of green light institutions,” said FIRE Executive Director Robert Shibley. “As one of only 37 schools in the country to earn a green light rating from FIRE, Emory is now positioned to become a national leader in protecting free speech on campus.”

To earn its green light rating, Emory revised its undergraduate conduct code, as well as policies governing campus bias incidents and the use of information technology resources. FIRE worked on the changes with Alexander “Sasha” Volokh, chair of Emory’s Open Expression Committee and a professor at Emory University School of Law.

“Once these policies were brought to our attention, everyone basically agreed that it was a matter of mistaken or outdated language that did not reflect the values of Emory’s Open Expression Policy,” Volokh said. “The credit really belongs to Emory’s administrators, from President Claire Sterk on down, who strongly support open expression on campus — as well as to the University Senate that adopted the Open Expression Policy five years ago.”

“It was a pleasure to work with Emory on these revisions,” said FIRE Vice President of Policy Research Samantha Harris. “We hope other institutions both in Georgia and across the country will follow Emory’s lead and adopt policies that fully protect students’ free speech rights.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality, and freedom of conscience on America’s college campuses.

CONTACT:

Daniel Burnett, Communications Manager, FIRE: 215-717-3473; media@thefire.org

Alexander “Sasha” Volokh, Emory Law School: 626-354-4581; avolokh@emory.edu

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/05/emory-university-gets-green-light-free-speech-rating-from-fire/