Posts Tagged ‘constitution’
An Updated Section 1983 Primer (3): Constitutional States of Mind
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the third of these posts. I hope you find it to be informative. The next post in this series will deal with cause-in-fact and the Mt. Healthy burden-shift
Introduction
Are there state of mind requirements for the section 1983 cause of action? The answer is NO as a statutory matter and YES as a constitutional matter.
The Background
Recall from my previous post that the Supreme Court stated in Monroe v. Pape, 365 U.S. 167 (1961), that section 1983 is to be interpreted against “the background of tort liability.” What does that mean? One possibility is that there is some sort of state of mind requirement, stemming from section 1983 itself, for the 1983 cause of action. If so, is it negligence, deliberate indifference, intent or something else?
After some confusion in the circuits, the Supreme Court finally put the matter to rest in Parratt v. Taylor, 451 U.S. 527 (1981), when it declared as a statutory matter that there is no state of mind requirement for the section 1983 cause of action.
However, it turns out that there are state of mind requirements for the section 1983 cause of action that are based on the underlying constitutional claim.
Constitutional States of Mind, Variable and Otherwise
Simply put, different constitutional provisions have their own state of mind requirements. Thus, it has been the rule since Washington v. Davis, 426 U.S. 229 (1976), that equal protection violations require purposeful discrimination. There is therefore no such thing as a negligent or deliberately indifferent equal protection violation. Similarly, the Supreme Court declared in Daniels v. Williams, 474 U.S. 327 (1986), that due process violations require an abuse of government power, so that negligence is not sufficient. And Eighth Amendment violations require at least deliberate indifference, according to the Court in Farmer v. Brennan, 511 U.S. 825 (1994).
However, it is a bit more complicated than that: different states of mind may be required under the same constitutional provision where the circumstances are different. I call these variable state of mind requirements. For example, while the general rule in substantive due process cases is that deliberate indifference is required, in high speed police pursuit cases where police have little or no time to deliberate, the state of mind required, as ratcheted up by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833 (1998), is “purpose to cause harm.”
Similarly, while the general rule in prison condition of confinement cases is that the Eighth Amendment requires deliberate indifference in the sense of subjective criminal recklessness, in prison security cases the state of mind required, as ratcheted up by the Supreme Court in Whitley v. Albers, 475 U.S. 312 (1986), is conduct engaged in “maliciously and sadistically for the very purpose of causing harm.”
Why Different Constitutional States of Mind?
At the most superficial level, the Court was engaged in constitutional interpretation when it ruled that equal protection requires purposeful discrimination, that due process requires at least deliberate indifference and that the Eighth Amendment requires at least deliberate indifference in the sense of subjective criminal recklessness. In reality, there is considerably more going on.
First, these state of mind requirements are fault or culpability requirements. The particular constitutional provision implicated in a section 1983 case, which includes its state of mind requirement, constitutes the constitutional norm applicable to the defendant’s conduct. Without this kind of fault, there can be no section 1983 cause of action.
Second, these state of mind requirements can serve functions other than setting out the applicable fault or constitutional norm. Notice how the scope of section 1983 liability decreases the higher or more culpable the applicable state of mind requirement. Proving purpose to do harm in a high speed police pursuit case, for example, is much more difficult for plaintiffs than proving deliberate indifference. In this way, the need to compensate for harm caused is reduced .
Perhaps more important, higher state of mind requirements reduce what the Supreme Court increasingly views as the improper chilling effect of potential damages liability on independent decision-making by government officials. Put differently, the Supreme Court is increasingly concerned with over-deterrence.
While this concern with over-deterrence is most obvious in the individual immunities context (about which I have posted a great deal on this blog), it plays a major role in determining applicable constitutional states of mind and is therefore frequently determinative of the scope of the section 1983 cause of action as well.
An Updated Section 1983 Primer(2): The Seminal Decision in Monroe v. Pape
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I have been updating my popular “Primer” series on section 1983.
Below is the second of these posts. I hope you find it to be informative. The next post in this series will deal with the important but somewhat confusing topic of constitutional states of mind.
The Seminal Decision: Monroe v. Pape, 365 U.S. 167 (1961)
This sixty-three year old decision is where section 1983, enacted long ago in 1871, first had life breathed into it. The themes it announced continue to be important to this day.
Monroe involved a plaintiff’s allegations that police officers entered his home without warning and forced the occupants to stand naked while the entire house was ransacked. The plaintiff was thereafter arrested but released without being charged. According to the plaintiff, the police officers violated his Fourth (and Fourteenth) Amendment rights and were personally liable to him for damages under section 1983.
In response, the officers made three arguments, all of which the Court rejected.
The First Defense Argument: “Chutzpa” and Color of Law
The officers’ first argument was one that I have elsewhere characterized as “chutzpa” (meaning “lots of nerve”). Focusing on section 1983’s color of law requirement, they maintained that they did not act under color of law because they allegedly violated the Illinois constitution and much statutory and common law. In their view, section 1983 defendants could only be liable for federal constitutional violations where they acted in a manner consistent with state law. For this reason, the officers did not act under color of law and were not liable for damages under section 1983.
The Court, in an opinion by Justice Douglas, responded by saying that section 1983’s statutory color of law requirement was essentially the same as the Fourteenth Amendment’s state action requirement: once there was state action, there was color of law. (Justice Frankfurter dissented on this issue). And since in this case it was clear that the plaintiff alleged an abuse of state law and power that violated the plaintiff’s Fourth Amendment rights, state action was present. It followed from this that the plaintiff properly alleged acts under color of law. To put it another way, the Court said that the scope of section 1983 was as broad as the scope of the Fourteenth Amendment.
This turned out to be very significant as the scope of the Fourteenth Amendment expanded, by the process of incorporation, to include most of the provisions of the Bill of Rights.
The Second Defense Argument: State of Mind and Specific Intent
The officers next argued that they were not liable under section 1983 because the plaintiff did not allege that they specifically and knowingly intended to violate his Fourth Amendment rights. Disagreeing, the Court interpreted section 1983 against what it called the “background of tort liability” under which a person is responsible for the natural consequences of his or her conduct. Specific intent was not required as a matter of section 1983 statutory interpretation.
Note, though, that different constitutional violations have their own required states of mind (the subject of the next post in this series). For example, equal protection violations require purposeful discrimination, Washington v. Davis, 426 U.S. 229 (1976), and Eighth Amendment violations require at least deliberate indifference, Farmer v. Brennan, 511 U.S. 825 (1994). But these examples are matters of constitutional interpretation, not section 1983 interpretation.
The Third Defense: Exhaustion of State Remedies
Finally, the officers made an express federalism argument, namely, that every section 1983 plaintiff first had to go to state court and seek whatever judicial remedies were available under state law. Only then was he or she permitted to sue under section 1983 in federal court. Again disagreeing, the Court emphasized that the federal section 1983 remedy was supplementary to any available state remedies and, consequently, a section 1983 plaintiff need not first exhaust his or her judicial remedies.
This no-exhaustion rule, a matter of section 1983 statutory interpretation, was thereafter extended to include administrative remedies in Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982). However, in many prisoner litigation cases, there is now an exhaustion of administrative remedies requirement. See 42 U.S.C. § 1997e, as amended by the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, Title VIII, 110 Stat. 1321-66 (1996).
Observations
Federalism was implicated not only in the exhaustion argument of the officers but in their color of law argument as well. Had the scope of section 1983 been limited in conformity with these arguments, plaintiffs would have to resort to state court, not federal court, and seek redress under available state remedies. Not surprisingly, federalism concerns continue to drive much of section 1983 jurisprudence. After all, section 1983 is a federal statute enforced by federal courts against state and local governments and their officials and employees.
Additionally, the “background of tort liability” approach to section 1983 was to become quite significant in connection with the immunities of state and local government employees and officials sued personally for damages under section 1983. In general, tort law concepts play an important, even if not necesarily dispositive, role in interpreting the statute. This approach, based on the common law of torts in 1871, is broadly consistent with the current’s Court’s originalist approach to statutory interpretation.
An Updated Section 1983 Primer (1): History, Purposes and Scope
In honor of the 40th Annual Conference on Section 1983, to be held in-person at Chicago-Kent College of Law on April 18-19, 2024, I am updating my popular “Primer” series on section 1983.
Below is the first of these posts. I hope you find it to be informative. The next post in this series will deal with the Supreme Court’s seminal section 1983 decision, Monroe v. Pape.
This post is intended primarily for those lawyers, law students and members of the public who are not very familiar with 42 U.S.C. section 1983.
History and Purposes
At the outset, observe the very close connection between section 1983 and the Fourteenth Amendment.
Section 1 of the Fourteenth Amendment to the Constitution of the United States, ratified in 1868, declares that states may not abridge the privileges or immunities of citizens of the United States and sets out the protections of due process and equal protection for “any person,” none of which states (and local governments) may deprive or deny. Section 5 of the Fourteenth Amendment gives Congress the power to enforce section 1 by appropriate legislation.
Section 1983 was enacted in 1871 by the 42nd Congress pursuant to its section 5 power in order to enforce the Fourteenth Amendment. It effectively creates a Fourteenth Amendment action for damages (and for injunctive relief) against “Every person,” acting under color of state or local law, who deprives a person of his or her Fourteenth Amendment rights and thereby causes damage. As it turns out in Supreme Court case law, “Every person” includes state and local government officials as well as local governments themselves (but not states).
The Broad Scope of Section 1983
The scope of section 1983 is as broad as the scope of the Fourteenth Amendment itself, which includes not only the Due Process and Equal Protection Clauses but also, through a process that judges and lawyers call “incorporation,” many of the provisions of the Bill of Rights which on their face apply only to the federal government. Currently incorporated are the First Amendment, the Fourth Amendment, most of the Fifth, the Sixth and the Eighth. In 2010, the Second Amendment, dealing with the right to bear arms, was also incorporated and applied to states and local governments.
In real world terms, this means that whenever a state or local law enforcement officer makes an arrest, conducts a search or uses force in alleged violation of the Fourth Amendment, section 1983 is potentially implicated. Whenever a public school official punishes a student or teacher for what is said or written on school premises in alleged violation of the First Amendment, section 1983 is potentially implicated. Whenever a prison official imposes conditions of confinement on inmates in alleged violation of the Eighth Amendment, section 1983 is potentially implicated. And whenever a public employer discharges an employee for racial or sex-based reasons in alleged violation of the Equal Protection clause, section 1983 is potentially implicated. Note the obvious: these examples are far from exhaustive.
Complications
On the face of it, section 1983 litigation appears very straightforward. One would think that the major issues in such cases are whether the Fourteenth Amendment was violated by a state or local government official or a local government (the defendant) and whether the person suing (the plaintiff) was injured. If so, liability for damages ought to follow.
However, much section 1983 doctrine has become increasingly technical. For example, the Supreme Court has created a plethora of defenses called “immunities” (absolute and qualified) that may protect individual state and local government officials against liability for damages in certain circumstances. In addition, the Court has progressively made it quite difficult for section 1983 plaintiffs to successfully sue local governments for damages. And not only that: states as states cannot be sued for damages under section 1983.
More about all of this in subsequent posts.
Archives
Know Your Constitution (3): Myths About the Supreme Court
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
I recently blogged regarding two myths about the Constitution. That post was the second in my series, “Know Your Constitution,” which is intended for a general audience.
This is the third in the series and it addresses three myths about the Supreme Court with a minimum of legal jargon.
The First Myth. The Supreme Court’s primary function is to do justice.
Reality. The Supreme Court’s primary function is to interpret the Constitution and federal statutes. These interpretations become the supreme law of the land. The Court’s function is not necessarily to do justice in individual cases.
Of course, there are times when interpretations of particular constitutional provisions are considered by many to be just. For example, the equal protection clause of the Fourteenth Amendment, which prohibits racial and other kinds of discrimination by government, is considered to be a just constitutional provision because it is based on the concept of equality.
Another example is the due process clause and its application in criminal cases. Due process has been interpreted to include concepts of justice and fairness so as to protect the rights of criminal defendants to an unbiased court, to confrontation and cross-examination, to be free from self-incrimination, to an attorney, and so on.
What is most important to remember, though, is that Supreme Court decisions are not necessarily just or moral. A Supreme Court decision can uphold an unjust federal or state law as constitutional. For example, the Court in Plessy v. Ferguson unfortunately upheld separate but equal in the racial setting at the end of the 19th century. It thereby perpetuated Jim Crow laws until Brown v. Board of Education was handed down in 1954.
On the other hand, a Supreme Court decision can rule that a wise and just federal or state law is unconstitutional. For example, the Supreme Court struck down the Violence Against Women Act in United States v. Morrison at the beginning of this century.
The Second Myth. The Supreme Court is a political body like Congress and the President.
Reality. The Supreme Court is the only branch of the national government that is not directly politically accountable to the electorate. The justices have lifetime tenure once appointed in order to insulate them from political pressure. To demonstrate how important judicial independence is, consider that the Court’s rulings are typically complied with on a voluntary basis by those affected. Al Gore’s concession to George Bush after the Court’s ruling in Bush v. Gore is an excellent example of such voluntary compliance.
On the other hand, the justices are human beings who cannot help but be influenced by their upbringing and by contemporary political and social values. Consider, for example, the infamous Dred Scott and Plessy v. Ferguson decisions, where the justices could not distance themselves from their support for white supremacy.
Still, because the justices are not directly answerable to the electorate, it is an important part of their judicial function to avoid applying their personal values, to the extent possible, when they interpret the constitution.
The Third Myth. The Supreme Court simply makes up most of its constitutional decisions.
Reality. It’s much more complicated than that. Some constitutional provisions are very easy to apply because they are very specific. For example, the President must be a natural born citizen, over thirty-five years old and a resident of the United States for fourteen years.
Similarly, it is clear from the text of the Constitution that it is Congress that has legislative powers, it is the President who has executive powers and it is the Supreme Court that has judicial powers. There are many such examples.
In contrast, other provisions of the Constitution, because they are less clear inherently, necessarily require a fair amount of interpretation. What do freedom of speech, freedom of the press, freedom of religion, mean anyway? Does the Fourth Amendment prohibiting unreasonable searches and seizures apply to electronic surveillance, to the internet? The text of the Constitution and the history of these provisions often provide no clear answers; obviously the Framers never thought of media such as radio and television, or about electronic surveillance and the internet.
So what does the Court do? Until recently, the short answer was that the Court typically proceeded cautiously and developed the meaning of these and similar textual provisions on a case by case basis. Typically the justices would focus on the values implicit in the constitutional provision they were interpreting. They then asked whether and how to apply those values in the new situation confronting them.
However, a majority of the current Supreme Court has now adopted an approach called “originalism” that focuses on the history and tradition of the particular constitutional provision of concern. The Court has applied this approach (which really has varying meanings) to the Establishment Clause, the Second Amendment and the Due Process Clause (in overruling Roe v. Wade).
Both the earlier approach and the current “originalism” approach constitute what some call judicial restraint, and what others call judicial activism.
It must be acknowledged that both approaches give the justices as individuals, and the Supreme Court as an institution, a good deal of interpretive latitude on difficult constitutional interpretation questions. And it must also be admitted that this often generates a great deal of controversy, often of a politically partisan nature.
However, controversy is one of the inevitable costs of being a citizen in a democracy with a Supreme Court that interprets the Constitution. And it is a cost I’m willing to acknowledge and bear, even when I believe firmly that the Court has gotten it wrong.
Know Your Constitution (2): Myths About the Constitution
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
My preceding post, on the structure of our government, was the first in a series called “Know Your Constitution.” This series is intended to educate citizens, law students and attorneys about the Constitution and the Supreme Court with a minimum of legal jargon.
This post, the second in the series, addresses two commonly and erroneously held beliefs, or myths, about the Constitution.
The First Myth The Constitution is a sacred document or is at least divinely inspired.
Reality The Constitution was written by human beings (all men at the time) and is a product of Enlightenment thinking. The Constitution exemplifies the application of reason to self-government. The divine right of kings is emphatically rejected by the Constitution.
Notice that there is no reference whatever in the Constitution to a divine being. Religion is mentioned only in several places. One place is the First Amendment with its Establishment and Free Exercise Clauses. Another place is the prohibition against religious tests for political office. In other words, religion has its role, but that role is not in government.
Along these lines, to characterize the Constitution as deeply influenced by Judaism and/or Christianity, as many like to do, is simply incorrect historically. Traditional Judaism and Christianity had nothing to say about democracy. Also, many of the Framers were deists who believed that a divine being created the universe and nature with its “laws” but then bowed out of human affairs. In contrast, theists believe that a divine being revealed itself and remains concerned with, and involved in, human affairs.
However, it should be noted that a majority of the current Court approaches religion from a very different perspective and has reinvigorated the Free Exercise Clause at the expense of the Establishment Clause.
The Second Myth The Constitution, even if not divinely inspired, comes as close to being as perfect a document for self-government as is humanly possible.
Reality The Constitution is far from a perfect document.
The Framers were only human beings, although we are fortunate that they were very well educated, far-sighted and obsessed with forming a new kind of government that the world had never seen before. But they made mistakes. This is obvious if only because of the number of Constitutional Amendments that have been ratified—twenty-seven–including the Bill of Rights two years after the Constitution.
More seriously, the Constitution was almost fatally flawed from the beginning because of slavery. This word was never used in the Constitution—embarrassment, perhaps?–although there were three indirect references to it. I say “almost fatally flawed” because, as everyone knows, slavery led to the temporary breakup of the United States. It took an horrific Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments to amend the Constitution and eliminate slavery once and for all. In a very real sense, the Civil War and these three Constitutional amendments finally brought the Constitution into line with the Declaration of Independence.
Next in the Series: Myths about the Supreme Court
Know Your Constitution (1): The Structure of Government
(Author’s note. Over ten years ago I published a series of posts on different constitutional topics entitled “Know Your Constitution.” I believe that this series, intended for the general public, law students and attorneys, merits re-publishing in these perilous and divisive times when constitutional norms are being challenged at every level. So that’s what I’m doing, one post at a time, with revisions and updates where appropriate.)
Constitutional Education for Citizens
United States citizens, in my view, have an obligation to understand their government, the Constitution that created it and the Supreme Court‘s role in interpreting the Constitution.
However, I’ve thought for a long time that we in the legal profession and the law schools do a mediocre job, at best, in educating the public about the United States Constitution and the Supreme Court.
What I would like to do in this and in succeeding posts is try to explain, with a minimum of legal jargon, the Constitution and the Supreme Court’s role in interpreting it. Of necessity, these posts will be selective. I cannot cover everything.
This first post addresses the basic structure of our government as created by the Constitution, including separation of powers, checks and balances and federalism.
What is Separation of Powers?
The first three articles of the Constitution create and set out the powers of the three branches of government.
First and foremost, Article I deals with Congress, the lawmaking branch, and its two houses, the Senate and the House of Representatives. All legislation must be passed by both houses in order to become law. Congress may only act pursuant to its enumerated powers.
Second, Article II deals with the President, elected every four years, who enforces the law and thereby exercises executive powers. The President also has primary responsibility for foreign affairs except insofar as Congress is the branch that declares war. All legislation that is passed by both houses must go to the President for his approval.
Third, Article III creates the Supreme Court, the only non-politically accountable branch, in which is vested the judicial power to decide cases and controversies brought before it. Much more about this in later posts.
What Are the Purposes of Separation of Powers?
These three articles thus allocate governmental powers to three branches in order to promote efficiency. But this separation of powers serves another very important purpose: to make it impossible for narrow special interests (called “factions”) to capture the national government. The Framers were concerned, one might say obsessed, with preventing tyranny at the national level.
The political theory was that even if one branch of the national government ever became the captive of a faction, the other branches could step in and stop it. It is for that reason that separation of powers is not absolute: the Framers also provided for checks and balances among the branches. For example, legislation cannot become law without the President’s approval (unless Congress overrides a Presidential veto). Also, legislation must be enforced by the President. Supreme Court justices, and federal judges generally, are nominated by the President and must be approved by the Senate.
When Congress or the President violates separation of powers, it is the Supreme Court that steps in (through litigation) to strike down the unconstitutional conduct. For example, in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)(the famous Steel Seizure Case), the Court struck down the attempt by President Truman to seize the country’s steel mills: this was an unconstitutional exercise by the President of legislative power.
What is Federalism?
The Constitution also sets out the relations between the national government and the States. There are limits to what the federal government can do, and there are limits to what the States can do. In addition, the Tenth Amendment provides that powers not delegated to the national government are reserved to the states or the people.
In the last thirty or so years especially, the Supreme Court has enforced federalism rather aggressively and has, somewhat controversially, several times struck down federal legislation enacted under the Commerce power (one of the enumerated powers) because it encroaches on the States. A good example is United States v. Lopez, 514 U.S. 549 (1995), which held violative of the Commerce Clause the Gun-Free School Zones Act of 1990.
What Are the Purposes of Federalism?
Federalism is intended to promote efficiency, democracy and experimentation. But another very important function, like that of separation of powers, is the prevention of tyranny. Under this theory, States can serve as buffers between individual citizens and a possibly tyrannical national government.
A Controversial Issue
Here is one very important, and controversial, question about federalism: to what extent has it been modified by the Civil War and the Thirteenth, Fourteenth and Fifteenth Amendments?
These Amendments gave Congress the power to enforce their provisions against the States and are based on the assumption that it is now the national government that is charged with protecting individual citizens from the tyranny of the States.
The question is whether this acknowledged change in federalism extends beyond the protections of Thirteenth, Fourteenth and Fifteenth Amendment rights to include the powers of Congress under the Commerce Clause, as well as the taxing and spending powers.
It is fair to say that a majority of the current Supreme Court believes the answer to this question is an emphatic NO. In other words, the Framers’ view of the importance of federalism in these other areas–commerce, taxing and spending–continues to govern despite the Thirteenth, Fourteenth and Fifteenth Amendments.
A Personal New Year’s Day Post on Free Speech and Anti-Semitism
(I presented the following to my fellow congregants this past Saturday morning, Dec. 30, 2023, at the Lake Shore Drive Synagogue in Chicago. I like to think it may hold some interest for others as well.)
I want to ask your indulgence in allowing me to say a few words about Freedom of Speech: what Freedom of Speech is, what its purposes are and why as Jewish citizens of the United States we need to understand it.
Why here and now? People have been asking me about the First Amendment because of the fiasco involving the Congressional testimony of the presidents of Harvard, Penn and MIT. Also, because we are confronted by a surge in anti-Semitism here and abroad.
I. What is Freedom of Speech? Some basics.
The First Amendment to the United States Constitution, which created our republican form of government, declares that “Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
1. The First Amendment applies to government at all levels, and it protects us from governmental regulation of speech, especially (but not only) our political speech. It does not ordinarily apply to governmental regulation of conduct. So that defacing someone’s property by spray-painting swastikas and anti-Semitic slogans is conduct that can be punished. Tearing down posters of Hamas-held hostages on private property is conduct that can be punished. Forcing Jewish students into a university library while pounding on the doors and windows is conduct that can be punished.
2. However, and this is an important takeaway, the First Amendment does not apply to the private sector, including social media, private corporations and private schools and universities. Meaning that they are not bound by First Amendment restrictions. (More about educational institutions below)
3. Like every other individual constitutional right, it is not absolute. There is no First Amendment right to say whatever you want, whenever you want and wherever you want.
Along these lines, here are three exceptions to the First Amendment that Jews (and all citizens) ought to know about.
3 (a). Government can punish an individual who, by speaking to others, intends to incite imminent illegal conduct such as physical violence where that imminent illegal conduct is likely to occur (the incitement to violence exception to the First Amendment). Example: a pro-Palestinian speaker in front of the Israeli consulate in Chicago exhorts a riled-up large group of protestors to burn the consulate down NOW. That speech is punishable whether or not the consulate is burned down.
3 (b). Government can punish an individual who threatens another with physical violence where the other person reasonably believes that such a threat has been made (the true threat exception to the First Amendment). Example: someone who knows my pro-Israel views, and whom I know and who lives near me, sends me an email threatening me with serious bodily harm the next time I leave my home.
3 (c). Government can punish an individual who utters what are called fighting words in a face to face verbal confrontation with another person: this is likely to lead to a breach of the peace or disturbing the peace (the fighting words exception to the First Amendment). Example: a pro-Palestinian protestor comes up to you in public—you’re holding an Israeli flag–and calls you a child-killing Nazi directly to your face.
7. However, offensive speech such as hate speech, standing alone and not involving incitement, true threats and fighting words, is protected under the First Amendment even though it can be incredibly hurtful, isolating and silencing. This protection is unique to the United States; many European countries criminalize hate speech for historical reasons. A possible advantage of protecting hate speech—some people may disagree—is that you know who your enemies are.
II. What’s it for? The purposes.
Our form of government is self-government through reason (a repudiation of government by divine right or by clerics).
The first important purpose of the First Amendment is therefore to protect us from governmental attempts to regulate and criminalize our political speech in order that we can meaningfully participate in self-government. We don’t want government regulating political content and viewpoint.
A second purpose of the First Amendment is to protect the marketplace of ideas—you’ve heard of this one–a kind of laissez faire approach to ideas. The hope is that competition among ideas will bring us closer to something approaching truth. We don’t want government skewing this marketplace by intervening and regulating content and viewpoint.
A third purpose is to promote the personal development of the individual intellectually, politically, culturally and artistically.
A fourth purpose is that speech functions as a safety valve. If people can criticize and protest government and powerful interests in the private sector, then there is less reason to turn to violence and revolution.
Underlying all four of these purposes is skepticism about, and deep suspicion of, government when it tries to regulate speech; namely, the fear of censorship.
III. Why are these basics about the First Amendment important for Jews in particular?
1. Jews have, for better or worse, had to develop a thick skin because of centuries of Jew-hatred. We know our history only too well. This thick skin has helped us to adjust somewhat during the current and shocking upsurge in anti-Semitism in the United States and elsewhere.
But First Amendment protection encourages us and those who are on our side to go on the offensive and to fight it out in the marketplace of ideas without government interference. Many thousands of individuals and Jewish groups have done this since October 7: getting the facts and our opinions out there in print and social media in a reasoned and persuasive way.
2. As I mentioned earlier, the First Amendment does not apply to private universities such as Harvard, Penn and MIT. So what about punishing students who march through their campuses advocating the genocide of Jews?
Such activity may be prohibited by Title VI of the 1964 Civil Rights Act which prohibits racial, color and national origin-based harassment and intimidation of students at private universities receiving federal funds. Title VI also requires the affirmative protection of students against such harassment and intimidation, which may go beyond what the First Amendment requires.
3. But what about academic freedom? My answer is that, even if the First Amendment does not technically apply, private institutions of higher education should be governed by academic freedom norms grounded on the First Amendment. They are not intellectual safe spaces concerned with protecting students from being offended; instead, students should be pushed intellectually.
On the other hand, academic freedom norms dictate that conduct must never interfere with the institution’s educational mission. Harassment and intimidation do in fact constitute such interference as well as being conduct. So is physically preventing invited speakers—whatever their political views–from addressing student groups. Such conduct goes well beyond being offensive and can violate Title VI when it occurs at a private university. And if we’re dealing with a public university governed by the First Amendment, this conduct can and should be punished by university officials and by law enforcement through suspension, expulsion and criminal prosecution.
4. One final takeaway: I want to emphasize the crucial difference between what is legal and what is moral and ethical, a difference that is all too often not taken account of, especially by non-lawyers. Constitutionality is not the same thing as morality. Just because one has a First Amendment or academic freedom right to speak out or protest in a particular way does not mean it is moral or ethical to do so. The First Amendment is not a shield from moral criticism and private censure.
The Harvard, MIT and Penn presidents could have emphasized that their “context” responses were primarily legal in nature and that students marching through campus advocating the genocide of Jews act in a clearly reprehensible and immoral way. They apparently did not do so.
In addition, these presidents almost certainly would have answered the legal question differently if it had involved hypothetical white students advocating the lynching of blacks, thus exposing the underlying hypocrisy of their position: the double standard that Bret Stephens identified so eloquently in the New York Times several weeks ago.
IV. Conclusion: where do we go from here?
The First Amendment gives us room to fight against Jew hatred in politics and in the marketplace of ideas without government interference. Jews will need their usual thick skin to do so effectively. At the same time government must stand with us and declare that Jew hatred is not acceptable any more than race, sex-based and sexual orientation hatred and discrimination are acceptable. This kind of declaration of support by government does not violate the First Amendment because it is not censorship.
Thank you.
Nahmod Law 