In this episode of Real Talk, KJK Student Defense Attorneys Susan Stone and Kristina Supler are joined by Eugene Volokh, a leading First Amendment Law Professor from UCLA. Topics they discuss are related to the First Amendment. The conversation includes how the internet impacts Free Speech, what responsibilities the Social Media Platforms have towards free speech, and how Free Speech impacts abortion, fraternities and sororities, as well as housing laws.
Links Mentioned In the Show:
Eugene Volokh’s Bio (UCLA Webpage)
Free Speech Rules Videos: https://FreeSpeechRules.org
- (02:40) Has the internet changed the First Amendment on Free Speech
- (03:33) How the Supreme Court views Online versus Offline Free Speech
- (04:41) How Search Engines Can Reveal Your Court Case
- (06:08) How Posting on Social Media Can Open You To a Lawsuit
- (06:44) What Posts Can You Go to Jail For
- (08:05) Do Social Platforms Have the Legal Right To Remove People From Their Platforms?
- (13:35) Do Social Platforms Have the Legal Right to Curtail Hate Speech
- (15:40) What is Doxing? How Can Social Platforms Prevent This from Happening to You
- (16:58) What Courts Say About Publishing Your Information
- (19:39) Should Schools Police What Students Are Publishing
- (20:14) What Rights to Public Universities Have For Policing Students Posts
- (21:39) Private Universities: What Rights Do They Have For Policing Posts
- (23:07) Can Admissions Departments Reject Students for Previous Posts
- (25:33) How First Amendment Protections Extend to Clothing
- (26:20) How a Toy Gun Can Land a Student In Hot Water
- (28:16) Students Today and Views on the First Amendment
- (30:49) Can People Protest For Protections Related to Criminal Conduct
- (32:24) Can People Get Exemptions By Saying a Law is Against Their Religion?
- (33:10) What is the Religious Freedom Restoration Act
- (35:07) Can Businesses Prevent Men and Women From Working Together Based On Religious Beliefs?
- (36:58) Can a Woman Get A Religious Exemption For Abortion Where It’s Illegal
- (40:30) How Courts Protect Your Right to Expressive Association
- (41:49) Under What Circumstances Can You Exclude Someone From Living With You Based on Race, Sex, Sexual Orientation
- (44:03) First Amendments Rights and Fraternities and Sororities.
Susan Stone: Kristina, can we geek out today and talk about the First Amendment?
Kristina Supler: I think we do that every day, but
Susan Stone: let’s, okay. But let’s talk on our podcast about the First Amendment, because our practice is often at the intersection of free speech when it impacts and conflicts with different types of student issues, like cancel culture or when students get disciplined, or Greek life issues like the Freedom of Association, uh, less often discussed First Amendment issue.
Susan Stone: And it’s difficult to balance the idea of the free exchange of ideas versus saying whatever you want, just because you wanna say it when you wanna say it and where you wanna say it. And it seems like everybody today is a lot less tolerant of views that aren’t their own and cancel culture is becoming a very large part of our practice, which is why we launched our reputation management section.
Kristina Supler: We are very pleased to be joined today by Professor Eugene Volokh who is a leading First Amendment scholar at U C L A, where he teaches free speech law, religious freedom law, church, and state relations law, among many other classes. Before coming to UCLA, he clerked for Justice Sandra Day O’Connor, and the US Supreme Court, and also for Judge Alex Kazinski on the Court of Appeals for the Ninth Circuit, who’s also very well known,
Susan Stone: uh, and a court we’ve practiced
Kristina Supler: in. That’s right. Yep. Um, Eugene is renowned for his textbook on the First Amendment, and he’s actually one of the most cited law review article authors in our country. He’s also the founder and co-author of the Highly Regarded Legal Blog, the Volokh Conspiracy, which is now hosted at reason.com.
Kristina Supler: Thanks for joining us today. Oh, very much.
Eugene Volokh: My pleasure.
Susan Stone: And I should say I seasoned him. He was at a conference that we were at and you saw me inching up to Eugene, and I’m thinking I am going to make this person my friend, and talk about the First Amendment with him. So thank you for being on our podcast.
Susan Stone: We’re gonna start with a question broadly for our listeners. Eugene, how has the internet changed the way we view the First Amendment and freedom of speech in a very big way? And then we will drill down and funnel down that question
Eugene Volokh: well, depends on, uh, whom you mean by we. It hasn’t so far, at least seemingly changed the way the justices view free speech or generally lower court judges, or in many ways, lawyers generally speaking the same kind of speech that is constitutionally protected offline is constitutionally protected online and vice versa.
Eugene Volokh: Occasionally there have been times when. First Amendment law has turned a lot on the medium of expression, so for example, radio and television. Broadcast radio, television, not cable, let’s say. Were, uh, were and probably still are seen as more regulatable for historical reasons. From the 19 teens to the 1950s, movies were seen as not really protected by the First Amendment, but the internet ever since near its birth as a popular medium.
Eugene Volokh: Back in 1997, the Supreme Court said, speech on the internet is, Treated under the same rules as speech off line. So as a legal matter the internet hasn’t changed First Amendment law much. Now I do think that people’s reactions to various free speech questions may be affected by the internet. So, for example, I think a lot of people view things like Facebook and Twitter, those kinds of social media platforms, YouTube also and TikTok and various others as kind of part of their right to free speech and they get upset, understandably.
Eugene Volokh: When those platforms restrict them, even though they’re private platforms. So people would’ve probably said if the, if the New York Times refuses to publish my letter to the editor, well, of course, you know, they only publish as few too bad, but. But that’s fine. Plus they get to decide where they want to publish and what they don’t.
Eugene Volokh: But I think the same people might very well bristle if Twitter or Facebook de deletes their posts for understandable reasons. Again. and, and there’s an interesting question of whether that should affect the legal understanding, but but my guess is that at least it does affect people’s understanding.
Eugene Volokh: Another example has to do with access to court records. There’s a longstanding tradition That material and court records is open to the public. Open to everybody. Yes. But it used to be before the internet. That meant that if you really wanted to get something on a court record, like maybe if you were a reporter and you were being to pay to write about lawsuits, you’d go to the courthouse, you’d go to the basement, you’d look at the, uh, at the files and you’d write about it.
Eugene Volokh: But most, most court records would be basically invisible to. Now that they’re all on the internet and often directly searchable, people get really upset that every case that they’ve been involved in, whether it was a witness as a plaintiffs, the defendant is a criminal defendant, as a victim, is now on the internet.
Eugene Volokh: And people Google their names and they, they figure out uh, the stuff about them. So again, I do think the internet changes people’s perceptions of information, of speech and the like, even if it hasn’t changed the legal rules, at least. That’s
Kristina Supler: actually a perfect segue to the next question I wanted to ask you, which is when you are speaking to, let’s just say lay people, not, not judges or lawyers and, and speaking generally or more broadly about the First Amendment, what do you say?
Kristina Supler: In terms of people who sort of have this idea that, well, on the internet, I’m, I’m an anonymous person, I can say whatever I want. It’s the internet, it’s the worldwide web. What do you say in terms of, well, maybe not quite there, there are some repercussions
Susan Stone: and that would be contained in the terms of service of the providers?
Eugene Volokh: Oh, well, I think there are two questions lurking in here. One is somebody posts something. That, let’s say, accuses someone else of some crime and then they get sued for libel too, not a newspaper. Why are you suing me for libel? Well, it turns out that. There are restrictions on speech. So for example, if you, especially if you say something knowingly false about someone else that damages the reputation, you could get sued and maybe, maybe before the internet, if you just said it orally, probably would be a lot harder to catch you and, but with the internet now, you could get caught.
Eugene Volokh: Likewise, if you post something threatening. You could get prosecuted for a threat and people might say, well, what about free speech? Well, there are some narrow but significant exceptions to free speech, like for true threats of illegal conduct, like for defamation such as libel and the like. So people do have to remember that something that they just whip out in and angry or drunk or foolish moment.
Eugene Volokh: To me, never, never you damaging. Today, , there’s a separate question. Which is, well, what if it’s something that violates, say, Twitter’s terms of service or it doesn’t even violate them. You know, private entities can generally remove your material or kick you off uh, for, uh, for whatever reasons they want right now.
Eugene Volokh: At the same time though so how is that different from the things we started? Well, first of all, you’re the, the, the downside to you, we have technology is pretty limited. Like people value their ability to tweet or value their ability to post on Facebook. But I think most people would rather, would rather get kicked off of Twitter than go to jail.
Eugene Volokh: Uh, I would agree. ,
Susan Stone: my god, that is a bold statement, but, Would you take the position that you agree with decisions to pull someone off of Twitter like Kanye West or Donald Trump?
Eugene Volokh: Well, so it lot depends on what you mean by a Greek. So for example, I, I think that that large wealthy platform corporations like Twitter and Facebook should not be.
Eugene Volokh: Essentially interfering with public debate about elections by taking government officials or candidates for office and kicking them off of their sites. Now, maybe they have the right to do that. They certainly have the legal right to do that. At least in most states. There’s some state laws try to limit that.
Eugene Volokh: It’s an interesting question whether they’re constitutional, but they might very well have the legal right to do that. One might still say that’s not really good for. When a platform, just because it happens to have a lot of users and be economically extraordinarily wealthy and powerful, that it should be able to leverage that economic power into political power.
Eugene Volokh: So that’s a lot more of a concern with regard to candidates may still be applicable to Kayne West. Well, by the way, I think he is talking about running. For president, but uh, think it’s particularly dangerous when they do that with regard to credible candidates for office. Because if an election, which could have been 51 49, 1 way is swung 51 49 another way because.
Eugene Volokh: Uh, Jack Dorsey or Elon Musk or, uh, Zuckerberg decide that they, that they don’t like a particular kind of speech, even for good reason, decide that that may be something we might be troubled by. We may say they should have the legal right to do this, but we might suggest that they ought not do it.
Eugene Volokh: There’s a separate question of may the government step in and say, You might think that you are like a newspaper, which gets to decide what’s in it, put in its pages. You might think you’re like a bookstore, which gets to decide what books to sell. But we think you’re actually more like the phone company, which isn’t entitled to say, we’re gonna cut off someone’s phone line because they’re communists.
Eugene Volokh: Or they’re recruiting for the kkk, or they’re recruiting for Antifa, or something like that. So, Is that permissible? Would it be permissible for the government to say, we’re so worried about you being able to leverage your economic power and your ownership of this tremendously important means of communication into political power that we’re gonna require you to be viewpoint neutral in your decision.
Eugene Volokh: So not to kick off people because they’re racist or anti-Semites, or because they’re spreading particular views about covid or about elections or. That’s an interesting and difficult question, and maybe the answer is that those platforms would have the right not to say, recommend certain posts not to pitch those posts to users as you might be interested in this or that because that’s their speech, but might be required to host it, to host those posts on their.
Eugene Volokh: So it could be that certain kinds of regulations as to the, what I call the hosting function of platforms are constitutionally permissible, whereas regulations of what I call the recommendation function of the platforms, which is a lot more, their speech would be impermissible.
Eugene Volokh: So I am really wrestling with that.
Eugene Volokh: Is the, are these providers more like a telephone service company and we don’t want the government listening in our co in on our conversation? Well,
Eugene Volokh: I’m sorry if I can interrupt. I just wanna make clear the telephone point is not about privacy, it’s not about confidentiality. Thank you. Even if somebody is widely known to be using a telephone line as a communist recruitment line, or a kkk, get out the vote line.
Eugene Volokh: They’re promoting it this way. Nobody’s listening in on anything. It’s well. still, then a phone company is not allowed to say, we’re going to cancel your phone line because we think you’re using it for evil purposes. No phone companies have to serve everybody so long as they, so long as they pay they can’t engage in viewpoint based discrimination among their subscribers as opposed to, uh, among their users, let’s say, the people who have phone lines as opposed to say a newspaper, which.
Eugene Volokh: And probably should decide which op-eds to publish based in part on their viewpoint.
Susan Stone: Thank you for that clarification. Would the barometer of censorship move up as the language moves from hate to calling for violence? Does that change your view? Is that like yelling? Fire in a theater. When you get on Twitter and say, this person is bad, cancel them, hurt them, or this candidate, let’s storm the capitol.
Susan Stone: I mean, when do you think there is the obligation? When does it really change from a moral obligation to a legal obligation to intervene?
Eugene Volokh: Okay, so again, we have. Several different things going on here. One is shouting fire in a crowded theater. I just wanna make it clear, the Supreme Court did say in a case, which actually since then has been overruled in considerable measure shank of the United States, uh, that the First Amendment doesn’t protect falsely shouting fire in a crowded theater and thereby starting a panic.
Eugene Volokh: So that was already a pretty narrow category of things that indeed are legally punish. So I wanna bracket this question of shouting fire in a crowded theater, falsely shouting fire in a crowded theater. It’s, I, it’s often used as an analogy, but it actually isn’t much of an analogy because, precisely because to the extent the court has endorsed it, it’s really very narrow.
Eugene Volokh: It has to do with, with falsehoods that risk, knowing falsehoods, really that risk, imminent, imminent stampe, imminent loss of life. the second question is should platforms make, distinguish between. So-called hate speech, which could just be the spreading of opinions sharply critical of racial groups or religious groups.
Eugene Volokh: By the way, that’s very common for people to sharply criticize religions or of sexual orientations or gender identities or of sexist or whatever else, and calling for violence and yeah, I could imagine a platform saying, look, we are open to all sorts of viewpoints, but not the viewpoint that you should go out there and act violent.
Eugene Volokh: So if you say, let’s go out there and kill the Jews, or if you say, let’s go out there and kill police officers. Or if you say, let’s go out there and engage in violent revolution and kill the oppressive capitalists. Or let’s go out there and kill the spoilers of the earth. Who are who are polluting our, our atmosphere with with greenhouse gases, whatever your ideology may be.
Eugene Volokh: If you’re calling for violence, we’re gonna kick you off. I think, you know, you could imagine a platform plausibly saying, I think. , look, this is, this is something where we draw the line. We’re gonna accept a wide range of views, including about race, about religion and such, but not if you call violence. So, so you could imagine that.
Eugene Volokh: Now again, phone companies can’t even do that, right? Uh, but you can imagine that possibly being a reasonable position for a company uh, to take. There’s a third cat question though. Okay. Which maybe returns.
Eugene Volokh: Yeah, I wanna bring a scenario to you, and it might be that third category. Kristina and I had a case around a year ago where, uh, students were considered unpopular for various reasons on campus, and they were doxed, and these, our clients were terrified that their families were.
Eugene Volokh: Going to be hurt. And I think that doxing has become a much bigger problem on college campuses.
Eugene Volokh: So I’m gonna need you to define doxing. because people have used doxing to mean a lot of things. Okay. Tell me what you mean by doxing.
Kristina Supler: Publicly outing someone’s home address telephone number so that other people can gang up on them and sort of got it.
Kristina Supler: Espouse the mob and town. .
Eugene Volokh: So that’s a very interesting question. So you’re talk, uh, about whether it should be permissible for the government or maybe just for a public university with regard to its students, to forbid the publication of people’s home addresses and phone numbers. The reason it sounds so appealing is you can have all sorts of public debates by and large, without knowing people’s home addresses or phone numbers.
Eugene Volokh: So one could imagine such a rule, and in fact there are a. Few statutes that do target that, or even more clearly like social security numbers. Very hard to see how my social security number is going to be relevant to some public debate. So you could argue that that’s the kind of thing that should be restrict.
Eugene Volokh: By the, the courts have not really been quite firm, even on social security numbers. They haven’t had a lot of occasion to deal with it when there have been attempts to outlaw the publication of home addresses, usually focused on home addresses, say have police officers and others. Oh, legislators is another case that I was actually involved in as a lawyer.
Eugene Volokh: Courts have said, no, it’s unconstitutional to ban such publication, and there are various reasons. One of them, by the way, is that in most of the country, it is legal to picket it outside someone’s home. I’m not wild about residential picketing, but it’s a tactic that has been used and continues to be used by the left and by the right, by various groups on the left and on the right.
Eugene Volokh: And if there is a legal right as there is in most places it could be restricted by ordinances or statutes, but most places don’t ban residential picketing. If there’s a legal right to picket someone’s home, there has to be a legal right to inform. Home to this place that, cuz that’s the home we’re gonna be picketing.
Eugene Volokh: So that’s what makes that pretty complicated. But note Gary, you said, you said at home addresses and phone numbers, I often hear doxing used to refer to other things like, for example, a person’s identity, the identity of a person who would rather remain anonymous. Like somebody who is a, an anonymous online commenter and somebody says, we think they’re a troll.
Eugene Volokh: We’re gonna track them down and we’re gonna tell you this is the person’s name. Well, that could lead to possible threats against the person. It’s also the sort of thing that newspapers pretty routinely do too, right? Like if you write a story about someone who’d rather not be written about, they could say, you’re doxing me.
Eugene Volokh: You’re revealing my personal information. What’s that information? My name? Well, it is personal information, but we. Have to have the right to talk about people’s names and to find, figure out who’s the person who’s anonymously doing this or that. Likewise, sometimes people say, well, uh, this person docks me by revealing the name of my employer.
Eugene Volokh: Well, that too might be relevant for a variety of reasons, both to figure out, let’s say if the anonymous commenter is hired by somebody, maybe they gives them a conflict of interest if they’ll say anonymous journalist or a popular tweeter or something like that. Also, sometimes people do organize. Or threatened boycots of employers because of the speech of their employees.
Eugene Volokh: I don’t approve of that as a general matter. But but in many places it’s legal. And again, if that’s legal, then you have to be able to identify whom you need to threaten to boycott. Hmm.
Kristina Supler: Eugene, I wanna switch gears a little bit. So Susan and I represent students across the country involved in a lot of different types of matters, general student misconduct, title ix, so on and so forth.
Kristina Supler: I’m wondering what are your thoughts on whether schools should get involved in sort of policing what students post on the internet?
Eugene Volokh: Well, at least it de, it depends on what kind of. Uh, so
Kristina Supler: course private, private ,
Eugene Volokh: public versus private college versus high school. Yeah, high school versus elementary school.
Eugene Volokh: That’s actually gonna be our follow
Kristina Supler: up
Eugene Volokh: question, so let’s take an example and also what kind of things are they, are they posting? So let’s take an example. Let’s say UCLA starts policing what people post by threatening to expel them for racist posts. That’s a first amendment. If that’s the policy, it’s open and shut, unconstitutional.
Eugene Volokh: And whoever is targeted by this should sue and they’ll get, they’ll get money, or at least their lawyers will get attorney fees. Uh, so, so that’s, oh, that’s good. always, that’s always, you’re
Susan Stone: speaking my language, .
Eugene Volokh: Exactly. . So, okay, so that’s an example. But let’s look even at the public university context.
Eugene Volokh: Let’s say the university says, you know, we’ve been hearing about various threats of violence. It could be racist violence, or it could just be, you know, there’s chatter, like there’s a strike going on and there’s chatter about maybe vandalizing government buildings, uh, university building. And of hurting another
Susan Stone: student
Eugene Volokh: or of hurting another student, which is what we deal with Sore gonna do, is we’re gonna monitor that, maybe hire someone to search for these things, maybe set up some ai, like talk to our computer science department.
Eugene Volokh: Can you set up an AI that monitors tweaks to see if there are, if there seem to be references to things connected to our university, and then have somebody probably, it’s not. And AI would have to be some human looking through and saying, oh, wait a minute. That either that, maybe that looks like a death threat and that’s something we should prosecute someone for.
Eugene Volokh: Or maybe even, it doesn’t look like it’s illegal itself, but it’s useful information for us to know because maybe we wanna have more police presence at someplace or something like that. Or, or alternatively, let’s say that it’s not a threat of. What it is, is somebody posting, posting, uh, information about forthcoming exams that they managed to hack into somebody’s computer.
Eugene Volokh: Right. Oh, we know.
Susan Stone: Yes. We had those cases.
Eugene Volokh: Right, right. You know, you’d think that universities ought to be policing that public or private, doesn’t really matter. Now, what if it’s a private university? What if it’s Harvard that decides we’re gonna expel people who express anti-trans views? I think that would be very bad.
Eugene Volokh: I don’t think it’s unconstitutional because Harvard’s a private, if they do it university. Well, if they do it, I think that’s a violation of academic freedom principles. It may be a violation of, of academic freedom policies that they’ve adopted as contracts in California, by the way, they weren’t Harvard, but if we were Stanford, California has a statute that bars.
Eugene Volokh: Private universities, generally speaking, there’s an important exception we’ll get to from expelling students based on, on their speech and otherwise disciplining students based
Susan Stone: on their speech. And I do wanna say, when I say they, I don’t mean Harvard in particular listeners out there. I am saying though, that schools, that generally, schools generally, I wanna make that clarification in fact.
Susan Stone: Eugene, we had cases where college admissions were revoked when school admissions committees were informed after an acceptance of students. We’ve had a couple of those cases that students, when they were 16, 15, made comments that were. Either consider racist or sexist. Mm-hmm. and against the values of the institution.
Susan Stone: So there is a lot going on when schools find out about certain types of
Eugene Volokh: speech. Right, right. And I do think that that kind of policing is improper. And again, a private university may be free to do that, but I don’t think it should, but, . Let’s assume that this is particular kind of university, which is known as a theological seminary.
Eugene Volokh: Mm-hmm. , where they say, you know, we believe in some particular religious viewpoint and we want to train future ministers of that viewpoint. And you’ve just been posting about how you’re an atheist. Or posting things that, that, maybe not even an atheist, cuz then why would you want to come, come, uh, to study at our school?
Eugene Volokh: You’re a heretic, right? You claim you are a good ex Methodist, let’s say, but really your views are ones we do not want around our institution. You know, I would cut, I, I would be more open to the, that kind of university doing it in part. My sense is a lot of these places, not all of them, I think some theological seminaries do, and some religious schools more broadly do make a big thing out of how they are open to all sorts of views.
Eugene Volokh: But if some of them do in fact say, you know, we’re, we’re not there to educate everybody regardless of viewpoint. We are there. Promo promulgate our understanding of the gospel. Well then it’s something more plausible for them to say, we’re trying to build a community of people who think like us and not people who think differently from us.
Eugene Volokh: So, so again, that’s just the university level at the high school and the junior high school and elementary school level, it may be even even different. So that’s, That’s why it’s, uh, it’s hard to answer these questions in the abstract,
Susan Stone: so we’ll drill down. We have every, typically it’s either after spring break, we have a number of cases where younger kiddos, especially junior high students, middle school age, love posting pictures of themselves, either with toy guns or a bullet or the ubiquitous.
Susan Stone: Hitler mustache, and we usually have to deal with those cases because they are, they usually get issued a suspension or expulsion notice.
Eugene Volokh: Right. Well, so I think a lot depends on the circumstances. A lot depends on whether there’s evidence of substantial disruption. For example, something may depend on whether it’s in a context where it looks like it’s threatening or where it targets a particular person at the same time.
Eugene Volokh: I’ve been involved in some cases where uh, there were attempts to punish students for just not even punish them, but just to stop them from wearing t-shirts that depict weapons to school. Well, and they, they were wearing some disciplined mm-hmm. . Mm-hmm. . And they, and they. Where, for example, some t-shirts that support gun rights, that have a picture of a gun or that have the logo of a pro-gun rights organization that has a gun on it.
Eugene Volokh: They were told not to wear it and courts generally say no, they have a First Amendment right to wear it. There’s no, there’s no pictures of guns exception to the First Amendment, Kristina. So likewise with toy guns, if somebody, if a school were to say, you are not allowed to pose even outside school on the internet with a toy gun.
Eugene Volokh: I think that’s a First Amendment violation. Now, if what was happening is these, that the student had a picture of himself with a gun that doesn’t look like a toy gun, turns out it’s a toy gun, doesn’t look like a toy gun, and he’s saying, teacher Jones, you know I’m gonna shoot you with this. Well, even if it turns out that he couldn’t do it, cuz it’s a toy gun, that may very well be a punishable.
Eugene Volokh: Yeah.
Susan Stone: Kristina, don’t you think we’ve come so far from Tinker Vido, the case where students prevailed in protecting their right to protest Vietnam to what’s going on today. Do you think there’s a difference?
Kristina Supler: Oh gosh. I mean, it’s just, I, I keep coming back to the internet and the impact of the internet and these online platforms for students too.
Kristina Supler: Cause of course, that’s primarily the lens that we’re sort of examining these issues through is from a student perspective, the level, what is said, the, the. persistence with what is said, the frequency, how people sort of jump on the bandwagon. And you know, I, I, I don’t especially love the phrase cancel culture, but it’s just a reality now and students are caught up in things so often, for better or for worse.
Kristina Supler: It can be scary at times. Yeah.
Susan Stone: When we talk to students, if someone says something that is, they love the word, the, the word of 22 is not triggering. They don’t like being gas lit. I don’t know if you’re hearing you gaslight me. Um, do kids. Fight. I think of Tinker Vido. I think of I’m 56 and how precious the First Amendment is.
Susan Stone: Do you think students even value the First Amendment anymore, or is everyone just like, I, I’m triggered. You’re causing me anxiety, you’re causing me depression. I don’t wanna talk about it. Don’t say anything.
Eugene Volokh: Everyone is, a lot of people, students are a large
Susan Stone: group . Are
Kristina Supler: you suggesting that we ought not generalize
Eugene Volokh: Well, I’d be hesitant to say that I know how people think. Including people that I spend very little time around. I spent very little time around, say K through 12 students. Except, except my, my kids who were one of whom just went to college, but they were both K through 12 for, for many years. And I saw some of their classmates, cause that’s, they skipped high school
Eugene Volokh: But, but, but that’s a very, uh, narrow subset of the whole population. And I don’t even know all. On top of that, if you’re comparing to how things were back in Tinker v Des Moines Independent School District back in 1969 that’s, uh, you know, I certainly don’t know what kids those days thought. Right. And I don’t think there were good surveys that we could look back on.
Eugene Volokh: And then on top of that, I think, um, a lot of students may say, you know, we value free speech, but with some, except, And the fact is, almost all of us, even those who value free speech a lot, recognize some exception. Again, for threats or for liable or, or, or for the like. So what I think has happening out there is there are, if you’re talking about students, there are many tens of millions of students.
Eugene Volokh: Who have different views about who should be free to speak under which circumstances. And then on top of that, there are probably quite a few who haven’t really thought hard about the subject. So as a consequence, you ask them a question in a survey, they may give you an answer just to get you off off their backs.
Eugene Volokh: But it could be a different answer tomorrow when something ill different is in the news because it’s not something that they’re really. To rest on as a as a kind of a, a, a, with a definitive answer. So I don’t know what students these days think. I have a much better sense of what the legal rules are because they are set forth in part by our hierarchical authority, by the Supreme Court, and I can read their, their opinions.
Eugene Volokh: I, I can read the minds of tens of millions of student. I’d like to, it
Kristina Supler: indulge me as we do a little law school exam question. Let’s talk about criminalization of abortion. We’ve obviously had a recent significance, Supreme Court ruling and how that sort of meshes with or intersects with free speech considerations, particularly on public college campuses.
Kristina Supler: I’m curious what your thoughts are if students live in a state where abortion is illegal, are they free to publicly protest and rally for something? otherwise a, a crime. What other speech pre are there still speech protections for protests related to criminal conduct?
Eugene Volokh: Well, what, what you’re, what you’re describing is a protest that maybe that they may include just decriminalizing conduct.
Eugene Volokh: Just like people are free to rally for decriminalizing marijuana in a case that, that, and excuse me, in a state that still bans marijuana, they’re free to rally for decriminalizing abortion. , right? Or not even decriminalizing, but fully legalizing and funding abortion. I’m perfectly free to do that more.
Eugene Volokh: What about
Susan Stone: religious considerations? What if you are a student, you find that you’re pregnant and you are part of a religion where your clergy says, You know what? I don’t think you are in a position. I think your health is endangered. You should go get an abortion. Do you think that the state has the right to interfere with that free exercise of what someone had going on between that person and their clergy?
Eugene Volokh: Well, so the answers may be, but the important thing is that, or one important thing is we’ve now moved a lot from a right to speak to a right to act, right? So remember I said you don’t, you have a right to. , you have a right to argue that marijuana should be legalized. You have a right to argue that heroin should be legalized.
Eugene Volokh: Perfectly good arguments that both should be legalized. That doesn’t necessarily doesn’t mean that you have the right to actually use marijuana. Or to use heroin. And incidentally, marijuana is an example of where at least some religious groups, uh, do view it as a sacrament. And courts have generally said no to those kinds of claims.
Eugene Volokh: So, so the one thing we know for sure is people can’t just get an exemption from a generally applicable religion neutral law simply by saying, I don’t like it, or It’s against my religion, or, My spiritual leader tells me that it’s a bad law or tells me we should violate that law that can’t by itself be enough because then otherwise all of us could violate any laws we want just by announcing this is part of our religion.
Eugene Volokh: Or maybe maybe joining some religion that authorizes that. So it’s a very different question. The pre speech question is very different from freedom of action. Now as to freedom of action, it is quite complic. It so there’s for example, a case that was just decided by a trial court in Indiana.
Eugene Volokh: Indiana has a law called the Religious Freedom Restoration Act. It’s modeled on a federal law that applies to federal statutes, but this one applies to state statutes in Indiana, these are called RRA for short. So the Indiana RRA says essentially that if the government substantially burdens somebody’s religious belief through some regulation, then that person gets an exemption.
Eugene Volokh: Unless the government can show that denying the exemption, that applying the law, notwithstanding the religious objection is narrowly tailored to compelling government interest. So let me give you an easy case under the law in favor of an exemption. Many courtrooms, as I understand it, probably most have a rule that says you can’t wear hats in.
Eugene Volokh: Agreed. Why? It’s just sort of seen as disrespectful. It’s not a, it’s not a tremendously important rule, but it is the rule and you can’t just say, I don’t like this rule. I like my cap. Baseball cap. Nope, sorry. You wanna be in a courtroom. You gotta follow the rules. But let’s say that hat is a Yamal cup or it’s a Sikh turt, or it’s a Muslim woman’s or Orthodox Jewish woman’s head scarf, let’s say.
Eugene Volokh: Or it’s a Catholic nun. Headgear well, that there you might very well have an exemption. Why? Because the law prohibits you from doing something your religion tells you to do. That’s the substantial burden part, and it’s hard to see some compelling government interest in making sure that people not wear a headgear in, in court.
Eugene Volokh: Maybe it’s a. Legitimate interest, maybe even a substantial interest, but compelling. The law says it’s gotta be very, very higher.
Susan Stone: So folks, so there’s out there listening. I just wanna add, when we get calls about, I wanna be on a sports team and I want a Covid exemption. Yep.
Eugene Volokh: There you go. There you go.
Eugene Volokh: And in states that have, uh, these kinds of RFRA rules, you may very well get such an exception. Okay, so let’s look at ex at an example of something that, uh, that pretty clearly wouldn’t. Uh, viewed as basis for an exemption. Let’s say somebody says, you know, I, my religion tells me that men and women shouldn’t work together because that’s contrary to modesty rules.
Eugene Volokh: So I’m not gonna hire this woman to work in this particular secluded place to right next to a man because, you know, he was there first and I’m not gonna fire him, and I’m not gonna hire a woman to work with him. That violates anti-discrimination. and, but the person says, you know, my religion tells me that it would be sinful for me to put men and women in a situation where there may be temptation.
Eugene Volokh: Well, okay, maybe that substantially burdens your religious beliefs, but there’s a compelling government interest in ensuring equal opportunity and employment and making sure that women or men or others aren’t handicapped in, in getting in, in, in developing their careers this way. So that, so that’s just a reminder that restrictions on conduct.
Eugene Volokh: Are often permissible, even if restrictions on speech wouldn’t be, let’s say for example, he says, I want to speak out urging all anti-discrimination laws be repealed. He has every right to do that. The First Amendment obviously protects his right to argue in favor of the propriety of discrimination, even if it’s illegal, because what’s illegal now could be made legal later.
Eugene Volokh: That’s part of the political process, but it doesn’t mean he can violate this law. So, one question, the abortion situation. Does the law substantially burden a woman’s religious beliefs? So for that, she has to be able to sincerely testify that her religion is motivating her to get an abortion. So as I understand it, at least many rabbis say that.
Eugene Volokh: Women should get an abortion to avoid threats to life. But of course, state laws already allow that. But also threats to physical and mental health. So if the woman concludes that she, that there would be really extremely mentally. Damaging for her to have another child whom she may be emotionally or financially unprepared to take care of.
Eugene Volokh: Then in that case, she should get an abortion. So if that’s so, and if the woman believes that, that’s a substantial burden, by the way, if the woman just says, my religion tells me that abortions are fine, that’s, that’s not enough to trigger this religious exemption regime. The religion has to tell her that she actually should get it, not that it’s her right to get it.
Eugene Volokh: So then the question. Can the government show that there’s a compelling interest in preventing abortions, and that’s something that courts in those states are going to have to resolve. And that’s one thing that makes this such a complicated question. How do you decide? I mean the, the statute says compelling government interest, but nobody has ever set up a clear rule as to what is a compelling government interest and what’s not.
Eugene Volokh: So that’s what makes this an extra complicated question. Much more complicated than a lot of free speech
Susan Stone: questions. Yeah. Compelling to whom? What’s compelling to you may not be compelling to me, Susan.
Eugene Volokh: I have. Right. Although the court, the statute seems to say compelling in the judges’. . That’s
Susan Stone: right.
Kristina Supler: Yeah.
Kristina Supler: Susan, we’re here with the foremost first Amendment scholar expert in our country. I want you to ask him a question about fraternities.
Susan Stone: Are you ready? are you ready for Let’s go deep. Okay. Because it’s gonna be our final question. We represent a lot of students in hazing cases, and we see a lot of campuses.
Susan Stone: The minute there’s an allegation of hazing. Shut down the fraternity. Do students have a First Amendment associational Right to gather in a Greek organization? And, you know, do I have the right to drink beer with people under the same Greek letters or can colleges say you’re out, you don’t, how does that whole Right to free association.
Susan Stone: I always think that’s something we don’t talk about in the First Amendment. Play into that decision. It’s so
Kristina Supler: interesting how, uh, every day in our cases we’re dealing with you know, issues that are. Teenagers, college students. But from a legal perspective, there’s, there’s pretty weighty constitutional issues at
Susan Stone: play at Well, yeah, and it, for my corporate partners out there, take that.
Susan Stone: We have some big issues in the student and athlete defense practice. Right.
Kristina Supler: What are your thoughts on, on what’s happening now with Greek organizations on college campus and, and what really feels like the push to do away with them and, and the tension? I think with freedom of association and I think that was
Susan Stone: part of litigation, correct.
Susan Stone: To get rid of single sex organizations.
Eugene Volokh: Okay. So it’s compliment as it, but it’s often
Susan Stone: complicated. ,
Kristina Supler: so it’s complicated for a couple of
Eugene Volokh: weeks. One is there are actually. Two kinds of constitutional rights that are labeled the Right to Associate and the Supreme Court in a 1983 case. Uh, Roberts, v US Jaycees actually went into this in a little bit of detail.
Eugene Volokh: I’m sorry, I just looked it up. Uh, I got it wrong. 1984 Case Roberts
Susan Stone: c James. That’s okay. I got the Des Moines v, the Des Moines Tinker v Des Moines Rock. So it’s okay. It’s okay. We’re among the friends and listeners.
Eugene Volokh: Neither of those rights is actually listed in the Constitution, but the court has said for a long time, there’s a right to expressive association, which is to say a right to associate in ways that promote your ability to express your views.
Eugene Volokh: And for example, in a political association,
Susan Stone: I’m a Democrat, religious association Republican. Got it. Right.
Eugene Volokh: So for example, if the government were to say, Uh, that people can’t form political organizations. They wanna speak, they can just speak by themselves, but they can’t pool their resources in order to, uh, to express themselves.
Eugene Volokh: That would be clearly unconstitutional because it would violate the right to expressive association. There’s also a right to intimate association, which the court has said extends to basically small. Groups of people who are either very close friends or have to share living quarters and the like. You know my, so I’ll give you an example, a
Susan Stone: little dirty on that.
Susan Stone: Kristina . Sorry, I, I always go to the gutter, don’t I?
Kristina Supler: Yeah, indeed. Indeed. But go
Eugene Volokh: on. So write to intimate association. Here’s an example of a case where this was implicated fr it’s not from the Supreme Court, but from the ninth Circuit. So out, out uh, on the West Coast, it’s, but it’s an important federal appellate court.
Eugene Volokh: There was, a lawsuit which asked whether a roommate finding service was entitled to provide ways for people to search for roommates of the same sex and roommates or of the opposite sex, but search for roommates, bi sex and bisexual orientation, or whether that was. Whether that was impermissible housing discrimination in violation of state law, and the court said, look, yeah, that’s a, as a landlord, you don’t have the right, generally speaking to say, I’m not gonna rent a women or to gays, or to blacks, or to Jews, or to fundamentalist Christians.
Eugene Volokh: but as a roommate, even one who’s just looking for a stranger to share an apartment with you, you could say, look, you know, I’m a woman. I’m only comfortable with other women, or I’m only comfortable with straight women. I don’t want a lesbian woman, or I’d prefer a lesbian woman. Or even, you know, I’m black and I wanna live with other blacks, or I’m a.
Eugene Volokh: I’m of Korean extraction. I wanna live with other Koreans, or I want to keep a kosher household. And in order for that to work, I I want to live with other Jews. So that’s an, the court said, I oversimplify here a little bit, but it basically said, yes, there is this right of intimate association of choosing whom you are going to live with.
Eugene Volokh: So, right of expressive association, as I understand it would rarely apply to fraternities. They’re not fundamentally organized in order to express their. They may in the process sometimes do that, like they may put out statements or engage in some political activity or some such, but that’s very very slight part of what they do.
Eugene Volokh: And in fact, in Roberts v US jcs, the court said it basically a, an adult fraternity, the Junior Chamber of Commerce, the jcs, like an adult club like that was not protected. By expressive association law, at least against application of anti-discrimination laws, it was required to let in women. On the other hand, fraternities, I think, are intimate associations.
Eugene Volokh: They are groups of people living together to be sure. It’s not one person, one roommate. It could be a couple of dozen people or more living together, but they do live together. They share household chores. They do, as I understand, it takes seriously the notion that they’re supposed to become friends and brothers and such.
Eugene Volokh: So they may have. Not under the First Amendment right of expressive association, but under the 14th Amendment right of Intimate Association. But the question is how far those rights extend. So I think if a university said, public university said, if you belong to a single sex fraternal or seral organization, we will expel you.
Eugene Volokh: That would be as unconstitutional as saying, we’ll expel you for marrying someone or we’ll expel you for having as a roommate someone who is of the same sex as you, or the opposite sex or whatever else. That would be an interference with their right of intimate association
Susan Stone: under the 14th amendment.
Eugene Volokh: Uh, exactly. However, let’s say the university. You know, what you do off campus property is entirely up to you. And if you wanna live off campus with some people who, and call it a fraternity, it’s all the same to us as if you wanna live with some camp, some people off campus and call it a roommates, however, If you want access to certain on-campus housing that we have historically leased to fraternities or sororities, well, we’re gonna say no.
Eugene Volokh: We’re only gonna release them now from now on to kind of unisex groups, groups that allow members of both sexes. Well, there, the government would be acting essentially as landlords and would have a good deal of authority to say, you know, our property, we want our property to be used for. Unisex groups and not for single sex groups.
Eugene Volokh: So a lot depends on the particular rules that the institutions are, are creating. And of course, a lot also depends on whether it’s a private institution or not. Cuz if it’s a private institution, it’s not bound by constitutional by, by 14th Amendment rules or First amendment rules. Uh, and the first place, because it’s not the.
Eugene Volokh: Thank you
Kristina Supler: so much. Good food for thought today. This 14th amendment issue in particular, not on my radar, so I’ve learned a great deal today, but it’s been such a pleasure speaking with you, Eugene. We’re really grateful for your time today.
Susan Stone: and I am so happy that I inched myself up. Eugene was actually talking, do you remember about the use of pseudonyms?
Susan Stone: Mm-hmm. and at our conference, and we often file as John Doe, so we were listening to what you had to say because we usually have had our motions for pseudonyms. Granted very important issue. And very important issue. Yes. And I have to tell you, trying to cover. All of the First Amendment issues that we wrestle with in our practice in the span of an hour.
Susan Stone: Impossible, but you have boiled it down. Did anyone ever tell you to write First Amendment for Dummies? I would be the first to buy that copy and well, I
Eugene Volokh: will say I did put together. Thanks for the generous, uh, thanks to Generous Grant by the Stanton Foundation. I put together. A series of 10 videos called Free Speech Rules.
Eugene Volokh: So if you go to free speech rules.org, one word, or you search for free speech rules, and especially Embolic on YouTube, you’ll find these videos. They’re mostly aimed at kind of high school students and college students. They’re kind of snappy and short and graphical, wonderful. But you know, I think all of us might like something snappy and short and graphical.
Eugene Volokh: So they’ll actually cover not all of the First Amendment by any means, but some of the issues. College student speech, high school student speech, and the luck.
Susan Stone: I love it. And thank you for sharing that everyone please check it out in and check it out. And thanks for being on Real talk with Susan and Kristina.