�鶹��ýIOS

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am, as always, your host Nico Perrino. And to my right as always it seems like – Bob, you're on the show all the time. Bob Corn-Revere, �鶹��ýIOS’s chief counsel wearing the black �鶹��ýIOS Polo.

Bob Corn-Revere: We’ve got good merch.

Nico Perrino: Yeah. I actually don't know if that's available in our store.

Bob Corn-Revere: It is because I bought it in our store.

Nico Perrino: Oh, did you really?

Bob Corn-Revere: Yeah.

Nico Perrino: We even make you go and buy things from the store, don't we?

Lee Levine: It would make a nice gift to guests on the podcast.

Bob Corn-Revere: It would.

Nico Perrino: Spoiler alert. We are having guest gifts. They are in the works. I think it's a scarf for women, a tie for men. They aren't available yet because they haven't arrived yet. Maybe they're stuck on some container ship somewhere coming from China.

Bob Corn-Revere: Who wears ties anymore?

Nico Perrino: You could put a tie around that Polo.

Bob Corn-Revere: You could. You could.

Nico Perrino: It would look a little funny. And that other voice you hear to my left, returning So to Speak guest – it's been a number of years, Lee. Lee Levine. Former counsel or former senior counsel, I should say, at Ballard Spahr. Last time we talked Lee, we were talking about Trump wanting to open up the libel laws. How has that gone?

Lee Levine: Well, that's a curve ball. Well, happily for the President that has not gone well. He got some takers on the Supreme Court in the form of Justice Thomas and to some extent Justice Gorsuch. But their invitations to their colleagues to investigate reopening the libel laws and reversing New York Times versus Sullivan or overruling it have fallen on deaf ears, I'm happy to report. And the court last term in the Counterman case reaffirmed Sullivan, and it at least looked like a signal to the world that they're not revisiting it any time soon.

Bob Corn-Revere: Yeah. And did more than just reaffirm Sullivan, but extended the constitutionalization of unprotected categories of speech and using Sullivan as the model for saying why you have to have a high standard before you can make speech illegal.

Nico Perrino: And Sullivan is that case from the 1960s – the Supreme Court case where they said that someone needs to be acting with actual malice if they are defaming a public official, or at least that's the allegation.

Bob Corn-Revere: In a civil defamation suit, yes, where defamation action is being brought by a public official. It set a very high bar for liability.

Nico Perrino: So our listeners – if they wanna go and learn about libel law, they can go back to our April 2018 podcast. Lee, it sounds like the law on that is still more or less the same.

Lee Levine: Yes. The law has not changed.

Nico Perrino: Okay. The libel laws are still closed. We've got a lot on the docket today. When we were preparing this docket – and of course, every now and then as our listeners know, we wanna go through the free speech news that's making headlines. We had a hard time settling on this docket because there was just so much news. We wanna keep the podcast to about an hour. But I think we've got five good stories for us to cover here today that I think are gonna get us into a number of interesting, maybe tricky First Amendment topics.

We'll see. So, the first topic I wanna talk about is the Supreme Court on Tuesday, May 20th said that the main House of Representatives cannot bar Republican lawmaker Laurel Libby from speaking in the chamber or voting because of comments she made about a transgender student-athlete. Some of our listeners will remember we talked about this case a number of weeks ago. Representative Libby is a critic of Maine's policy allowing transgender athletes to compete in high school sports.

She posted a photo of a high school athlete competing in the girls’ event alongside a photo of the same student competing in the boys’ event in a previous year. Because of this, the Maine House of Representatives barred her from speaking or voting in the house until she apologized. She refused to do so. Libby was denied a preliminary injunction at the lower courts, which led the Supreme Court to weigh in on this matter. Bob, what authority if any do state legislatures and even Congress have to police lawmakers within their own chambers?

Bob Corn-Revere: Well, they have quite a bit of authority to do that. And generally, that is going to be unreviewable as the lower courts found. But that authority isn't unlimited. The argument that was made was that this not only limited the lawmaker's ability to speak outside of the chamber but also disenfranchised the constituents that she represented in Maine. And that argument wasn't successful in the First Circuit, but was at least the Supreme Court on an emergency basis. The litigation is continuing. It's just that while it is pending, the legislator's right to vote and speak in the chamber has been restored.

Nico Perrino: So, this relates to Representative Libby's expression. If she had been charged and convicted with some sort of crime, presumably they could have excised her from the state legislature for that.

Bob Corn-Revere: I don't know the precise rules that apply in Maine for that.

Nico Perrino: But the First Amendment protects lawmakers speaking outside the chambers in this way?

Bob Corn-Revere: It does, yes.

Nico Perrino: Okay. Okay. Is that your sense too, Lee?

Lee Levine: Well, it's pretty clear now that it does. In my mind, what's unusual about this case – it has nothing to do with the First Amendment issues. I think the First Amendment issues, at least in my mind, are pretty clear. You can’t limit the right of an elected representative to represent her constituents based on the content of her speech. That seems pretty clear to me. What's unusual about this case and many people view as troubling is that the Supreme Court handled it on its so-called shadow docket where it is jumping into cases at earlier and earlier stages of the litigation process without full briefing and argument and deliberation and rendering decisions.

In this case, I think it was the right decision. And I think that it's not especially troubling that they acted on an emergency basis given the irreparable harm the representative and her constituents would suffer if she wasn't allowed to vote or participate in the legislative process while the case was pending. But it is an interesting and I think overall troubling trend that the Supreme Court is making so much law in the context of this shadow docket.

Nico Perrino: Yeah. So, the shadow docket is this idea is that it's taking up cases very quickly outside of the normal process. What is the normal process for the Supreme Court to take a case?

Lee Levine: The normal process is the party who did not prevail in the lower court would ask the court via petition to review the case. The other side would have an opportunity to say, “No. You shouldn't review the case.” The court would then decide. It takes four votes to hear a case. They take now, what, 50 of them a year?

Nico Perrino: Sixty or something like that.

Lee Levine: Yeah. Ever-shrinking number. Some 60 or something like that.

Bob Corn-Revere: Yes.

Lee Levine: And then if they do take the case, there would be a full briefing with much longer briefs than were filed in this court. The opportunity for friends of the court and Amici to weigh in, file their own briefs. There would then be an oral argument in which the advocates would appear before the justices and answer questions. And then there would be a typically fairly lengthy process before the court issued full opinions explaining their reasoning and the law that they were announcing. In this shadow docket, none of that happens. And there's usually – if an opinion at all – a very, very short kind of cursory one.

Bob Corn-Revere: That's right. And what's troubling about that is that the kinds of issues that are resolved by the Supreme Court are the most complicated and weightiest issues that often divide the circuit courts of appeals. And the court historically, and for the past decade or so, has been taking just a decreasing number of cases on its regular docket. But at the same time, there has been a growth in the number of cases resolved on these emergency bases.

Nico Perrino: Was TikTok one of those cases?

Bob Corn-Revere: Well, it was…

Nico Perrino: But it had a pretty robust briefing as well, albeit on a quick timeline.

Bob Corn-Revere: It did. It did. Well, and you also had a full decision by the Court of Appeals before it went to the Supreme Court. And so, while it was resolved on an expedited briefing schedule because of the statutory deadline, it didn't fit the mold of these emergency appeals that go up on, say, an interlocutory basis where you have a lower court either granting or denying injunctive relief and then the Supreme Court having to weigh in. And that's happening increasingly because of the number of emergency appeals from the growing number of executive orders that have been issued. This didn't fit that mold. But it does show that the court's docket, particularly this term, has been marked by the number of shadow docket decisions.

Nico Perrino: Historically, the Supreme Court had to take every case that came up to it. Right? Wasn't this prior to 1925 or something?

Bob Corn-Revere: No, they didn't have to take every case. But there were more cases that had a right of direct appeal. And there was also the cert process – the petitions for certiorari that Lee was talking about earlier – that made up much of its docket. But there were only a certain select number of cases where there was a right of appeal.

Nico Perrino: Gotcha. Gotcha.

Lee Levine: And the balance has shifted. There used to be by legislation a lot more cases that the court had to take. And by legislative action over the last many decades, the number of cases the court has to take has shrunk to a really minuscule level. So, it's almost entirely a discretionary docket of full-blown cases that get that treatment that I talked about earlier.

Nico Perrino: Well, the importance of that treatment is that it comes to the correct outcome that – as you mentioned, Bob – the Supreme Court's decisions are very weighty and it provides guidance to lower courts on how to resolve cases and controversies. And isn't there a kind of understanding within the legal community that cases that are argued, for example, in April and decided before the end of the term at the end of June tend to be less well reasoned maybe because they have less time to render their decisions? And so, if they’re having all these emergency docket cases with even less time than that, presumably, with fewer briefs involved.

Bob Corn-Revere: Yeah. That is crowding things out. And that is the thing. When you have an appeal that goes to the Supreme Court in the normal course of things, you have both full briefing by the parties but you also have participation by a range of Amici that lend a more fulsome discussion for the court to consider. And as you say, as a consequence of this too more time for the justices to consider the various issues and write a more fulsome opinion. When you have so many cases that have to be decided on a rushed basis on the basis of a more abbreviated briefing, it's just hard to come out with a better product in the end.

Nico Perrino: Well, how else should the court address something like this, right? Where you have Laurel Libby, who as you noted Lee, is being disenfranchised. Fer voters aren't represented. Or you have many of the Trump cases where you have someone, for example, who is shipped off to a foreign prison in El Salvador. You have questions around birthright citizenship. I don't know if that case is on the emergency docket. But you have all these weighty issues. The emergency docket is for something like irreparable harm, to use your phrase earlier, Lee. Right? Where the court just needs to take it now, otherwise the harm will be irreparable.

Bob Corn-Revere: Well, and part of it is just the circumstance we're facing. Because there are so many occasions that have more or less forced the court to take more cases on an emergency basis. And I think the alternative of simply not taking those cases would be more dire.

Nico Perrino: Does this mean that the court anticipates more of these cases coming down the pike because of the Trump administration's use of executive orders, for example, and it takes fewer cases on its normal docket?

Bob Corn-Revere: It's hard to say what the court is thinking in that regard. But for the next term, they've only accepted, what, nine cases so far?

Lee Levine: So, it's too soon to tell that it's unclear whether this term is gonna be a kind of one-off, unusual situation or whether it's gonna continue for the next four terms.

Nico Perrino: Or maybe you lose terms altogether and the Supreme Court works through the summer now. Right? What’s with taking July and August off?

Lee Levine: I don't think they'll do that.

Nico Perrino: All right.

Lee Levine: Some things do not change.

Bob Corn-Revere: That's right.

Nico Perrino: Let's turn now to the NPR lawsuit against the Trump administration. On Tuesday, May 27th, NPR and three Colorado public radio stations filed suit in federal court against the Trump White House over the President's executive order that instructs the CPB Board of Directors – that's the Corporation for Public Broadcasting – and instructs their board of directors as well as all executive departments and agencies to cease federal funding for NPR and PBS. There's a speculation – maybe well-founded – that this viewpoint is discriminatory – that the Trump administration is going after PBS and NPR because they have liberal bias.

Bob Corn-Revere: Well, Nico you don’t have to speculate.

Lee Levine: Speculation?

Nico Perrino: Well, I say speculation. Right? I say speculation because according to the –

Lee Levine: How about undisputed evidence?

Bob Corn-Revere: The executive order is a signed confession.

Lee Levine: Yes.

Nico Perrin: Well, let me quote from the executive order here, Bob. The executive order says, “Which viewpoints NPR and PBS promote does not matter. What does matter is that neither entity presents a fair, accurate, or unbiased portrayal of current events to tax paying citizens.” Now, of course the stations alleged that the executive order was unlawful in multiple ways, including violating the First Amendment's guarantee of freedom of speech and of the press, and that it was, “textbook retaliation and viewpoint-based discrimination in violation of the First Amendment. And it interferes with NPRs and the local member stations freedom of expression and editorial discretion.” PBS, I should also note, also filed suit.

Bob Corn-Revere: Yeah. And CPB has filed suit because Trump separately fired members of the Corporation for Public Broadcasting, which is not a government entity. It's by statute created as a private entity. And nonetheless – yeah.

Nico Perrino: Oh, I didn't know that.

Lee Levine: Yeah. I understand he's gonna remove several officers of �鶹��ýIOS.

Nico Perrino: But this is a question that's coming out a lot, right? Whether it's Harvard or PBS, what authority does the federal government have to dictate where it directs its funds?

Bob Corn-Revere: Well, the government does have the spending power. But once it exercises the spending power, it can't use that to manipulate private speech which is what's going on in this case.

Nico Perrino: But here they're not using it to manipulate, critics might contend. They're just taking away the money. I think federal funding is something like 4% of NPR’s budget. They're saying, “We're just not gonna spend money here anymore.”

Bob Corn-Revere: Well, it's actually lower than that, but a lot of their funding also comes from license fees paid by member stations. And the money that the member stations have come from a variety of sources including the federal government, but also from contributions and from state governments and so on.

Nico Perrino: And this money comes through the CPB.

Bob Corn-Revere: Right. Right. But you don't even have to get to the First Amendment. And believe me, there are plenty of good First Amendment arguments here. But just look at the Public Broadcasting Act of 1967. Section 398 prohibits federal officials from interfering in the editorial decisions made by public broadcast entities. And there are a number of protections that are built into the statutory structure that forms public broadcasting. Not to mention the fact that funding decisions over time, which are often subject to political manipulation, have been consciously insulated from those kinds of federal controls. Appropriations are made on a multi-year basis rather than annually.

And that change was made after the Nixon administration specifically to insulate public broadcasting from those kinds of political decisions. Now, you can argue and you can criticize some of the editorial directions that public broadcasting has made. And there was a very powerful critique a little over a year ago when Uri Berliner, who was a news editor at NPR and had been there for 25 years, criticized what he saw as the left-leaning drift of the editorial decisions of NPR. Fair criticism and certainly something that can be open to debate.

But regardless of how you feel about that critique of NPR to use these measures, these extra-legal measures violate not just the statutory structure for public broadcasting, but also impose unconstitutional conditions on the receipt of federal funding – I think the allegations being made in the lawsuit are absolutely correct.

Nico Perrino: So, there's nothing the government can do if it senses that there is political bias in news coverage to revoke its funding for that reason?

Bob Corn-Revere: That's right.

Nico Perrino: Okay. And it can presumably distribute funding for partisan or political reasons? Could the Corporation for Public Broadcasting give money to the Daily Signal, which I believe is the Heritage Foundation's news operation, if it wanted to? And then presumably a left-leaning presidential administration couldn't revoke that funding?

Bob Corn-Revere: Well, that's one of the reasons why the Public Broadcast Act was written so as to insulate these decisions from political manipulation.

Nico Perrino: Gotcha. Gotcha. And what's the distinction here, Lee, if any between administering federal funds and then revoking it for this reason to a private entity like NPR or like PBS as opposed to an entity like Voice of America or Radio Free Europe which are governmental institutions?

Lee Levine: Well, it's much more clear that we've got a First Amendment violation in the NPR and PBS cases because they're private entities. In the case of Voice of America, Radio Free Europe – there are stickier issues relating to the government's own speech and the right of the executive branch, which oversees at least in some senses, those operations to make those kinds of decisions with by whom they point to the boards and all of that. And Bob was alluding – or not alluding. He was talking about the act that created and explains how the corporation’s public broadcasting operates.

I think most of the work or a lot of the work in the context of government-owned media entities, if you will, has to come through legislation. The kinds of protections that Bob was talking about that are built into the statutory scheme around the corporation for public broadcasting – those same kinds of things in the legislation creating Radio Free Europe, creating Voice of America is where that protection is gonna come from most robustly, I think.

Nico Perrino: Yeah. And with Voice of America and Radio Free Europe, my understanding is the courts also prevented the executive branch from shutting down those entities. But it wasn't on a First Amendment basis, I believe. I believe it was on a separation of powers basis.

Lee Levine: Yes.

Nico Perrino: That these are entities created by Congress that the executive branch can't just decide that it doesn't wanna fund or maintain anymore.

Bob Corn-Revere: And that's part of the problem across the board. You have these sweeping pronouncements being made by the administration cloaked with the authority of the executive when they're in fact decisions that are assigned to other branches of government. And for example, the appropriation – as I mentioned for public broadcasting – is a multi-year thing, partly to create some political insulation, and the appropriations have already been made through, what, 2027.

Nico Perrino: Interesting.

Bob Perrino: And so, what you have are appropriated funds that the president has simply decreed are not going to be distributed because of his preferences about how the editorial content is exercised.

Lee Levine: Yeah. I'm pretty sure that – my memory may be a little off on this. But my memory is that the first count of the complaint in the NPR case is that it's exactly that. The executive branch doesn't have the authority to do this when Congress has appropriated the funds. If the executive branch wants to go to Congress and say, “Repeal the statute so that no funding is given to these entities,” it can do that. I think it's an interesting question in this context whether analogizing to the main lawmaker there's any First Amendment issues there. But it's certainly – in the NPR and PBS cases, you don't even get to the First Amendment issues because the president just doesn't have the authority to do this.

Bob Corn-Revere: That's right.

Nico Perrino: Well, I do have to wonder about the Trump administration's approach in many of these matters. Whether it's the Associated Press or Harvard or in this case NPR and PBS, it seems like the Trump administration has no problem saying the quiet part out loud that it's going after Harvard for its – Trump put it – hiring leftists, bird brain woke idiots. Or something to that effect. Or the Associated Press. It's very clear they're going after the Associated Press ‘cause they won't adopt the administration's preferred editorial standards surrounding the Gulf of America. And here, we know that the administration is frustrated and doesn't like NPR and PBS's editorial choices in any of these matters. Whether it's Harvard or PBS, NPR or the Associated Press, could the administration do some of what it wants to do – putting the statutory and separation of powers questions aside – if it just didn't say the quiet part out loud?

Bob Corn-Revere: Well, in part.

Nico Perrino: But then it doesn't win the political victory.

Bob Corn-Revere: Right. Right. Well, that's the dilemma for them. Right? Because you have to say the quiet part out loud to get the political victory that you want in a polarized political environment. But when you say the quiet part out loud, then you make a compelling case for retaliation by PBS and by public broadcasting in general. Because you don't have to raise a question about motive. And that's the problem in so many First Amendment retaliation cases. Actually finding something that proves what the illicit motive is. But here there's no mystery, right? As I said, the executive order really comes across as a signed confession.

And it does raise other issues that go to more fundamental questions like whether or not there's a place for public broadcasting anyway. Trump raised this in social media posts going back to his first administration saying, “Why does PBS still exist?” for example. And that point is also raised as one of the issues he discusses in the executive order.

Nico Perrino: And I'm sure there are many libertarians who are strong free speech advocates who would agree with him on that.

Bob Corn-Revere: Well, you can make the argument yes or no. But the fact that there are private alternatives is not an argument for not having a public broadcasting system just as the existence of private bookstores is not a reason not to have public libraries. So, you can criticize the fact that you have an entity that is a government-funded or in some places government-created media organization. And because of that, you create very complex questions of how the First Amendment applies that don't exist for private media. But we have created this system and it has served the nation well. And the question isn't what can we do to take a wrecking ball to it?

The question really is how do we balance these competing interests between having government separation from control of media and having some involvement?

Lee Levine: I would just add – going back to your initial hypothetical about what would happen if the quiet part wasn't said out loud. And I wanna pick up on what Bob said about what the dilemma is in the typical retaliation case where the party who's been punished or against whom adverse action has been taken believes in their bones that this is done as punishment or retribution or retaliation for their speech. And how do they make that case? How do they get the evidence to make that case?

And the courts have been working that through, but now that it has become a more pervasive problem at the federal government level, at the executive branch level, it's something that really has to be paid more attention to. Just to go off on one little tangent, we are not too far away now from the time when this administration is gonna start issuing subpoenas to journalists to testify in leak investigations. It might even be investigating journalists themselves for violation of some federal statute.

Nico Perrino: And this is speculation on your part, or do you have kind of an instinct that – or inside knowledge I should say?

Lee Levine: No, no. It is speculation based on the knowledge that the president has said both during his first term and between terms that he wants to subpoena journalists and force them to testify. He even has a graphic rant about what will happen to a journalist when they're in jail and get married.

Nico Perrino: Yeah. I'm not familiar with that rant.

Lee Levine: Yeah. So, it's quite interesting. And the government has announced – or at least it's been reported – that there are a host of leak investigations going on all over the executive branch. And third, the attorney general has now rescinded the guidelines that Merrick Garland had put in place that effectively prohibited subpoenas to journalists in federal investigations. So, I think those storm clouds indicate that this is gonna happen pretty soon. And right now as we sit here today, the only First Amendment-based defense that a journalist would have against that kind of subpoena issued in retaliation for their news reporting or to chill their ability to report on a subject matter going forward is if the subpoena were issued in bad faith.

Well, how do you prove that the subpoena was issued in bad faith? And the journalist, if he's able to make a prima facie case – which again as we've reported – we've talked about it's not hard in this administration given the quiet part out loud issue. But tying it directly to a specific subpoena is gonna be more difficult. And is there a mechanism through which a journalist or a news organization would be allowed to gather evidence to use the process as the court to gather evidence that the subpoena was in fact issued in bad faith? I think if what the Supreme Court said in the only case that’s considered the First Amendment-based reporter’s privilege is true, there's gotta be some mechanism for doing that.

Bob Corn-Revere: Yeah. And in litigation in general and not so much in the subpoena context, the issue of proving retaliatory motive generally requires you to go through discovery before you can really get to that before you can unearth the evidence that you need to demonstrate what the government was thinking when it took a particular adverse action towards some speaker. Whereas here, where you have in the pronouncements that lead to these actions, the motives spelled out you can sometimes I think, get to that outcome without having to go through full litigation.

Nico Perrino: Well, we'll keep our eye on those storm clouds. And when it turns into a thunderstorm, we will certainly cover it here on this podcast. Let's turn now from the White House to a middle school in Middleborough, Massachusetts on March 21st, 2023. So a couple of years ago now, a public middle school in Middleborough, Massachusetts, had a seventh grader – L M, according to the court documents – who wore a black T-shirt to school that displayed the words, “There are only two genders.” Now, the school officials told LM that he had to remove the T-shirt. But LM later came to school wearing a different T-shirt. This time the T-shirt said, “There are only censored genders,” on it.

And after meeting with school officials, he also again was forced to remove the shirt. LM filed a lawsuit alleging that Middleborough violated the First Amendment by forcing him to remove his shirt. And last week, the Supreme Court declined to take up the case. Now Bob, I know you are an expert on that 1960s Supreme Court case Tinker v Des Moines, which established that neither students nor teachers lose their First Amendment rights when they go through the schoolhouse gates.

But it seems like in the years subsequent to that late 1960s case the courts, particularly the lower courts and even the Supreme Court in a number of matters, have been narrowing that seminal holding. So, how are you looking at this case and how are you looking at it in the context of what's been happening in the courts in the 50-plus years since Tinker?

Bob Corn-Revere: Well, let me directly answer your question first and then I'll go back to that sort of interim period.

Nico Perrino: It's a compound question, Bob. You're very good at answering those.

Bob Corn-Revere: The answer to your question is I think this is a missed opportunity for the court to clarify what the contours of the Tinker standard are.

Nico Perrino: And the Tinker case, I should remind listeners, is the case during the Vietnam War era where Mary Beth Tinker and I believe it was her brother…

Bob Corn-Revere: Her brother John and a friend Christopher Eckhart wear black armbands basically in mourning for the dead of both sides in Vietnam as just a silent protest. The school got wind of the fact that they had planned to do this, and in an emergency meeting passed a rule against that. They all nonetheless wore the black armbands and got suspended. The case ultimately went to the Supreme Court and established in a landmark decision that students do have First Amendment rights to express themselves in school except in two cases.

1.) If there is a reasonable belief that there's going to be a substantial disruption or if it causes substantial disruption or if it invades the rights of others. Now, those two exceptions to free speech protections have been addressed by courts all over the years. And the Supreme Court had not been expanding on that concept in the years between Tinker and really then just a couple of terms ago. In fact, it had turned down most efforts to either reaffirm or expand upon Tinker, either for speech and school assemblies, speech and student newspapers, or in one case the famous Bong Hits 4 Jesus case back in, what, 2005 or six.

Bob Corn-Revere: Yeah. That was – no. That was Morse…

Nico Perrino: Morse – yeah.

Bob Corn-Revere: Versus Frederick. And that case involved students outside the school for an Olympic torch event. And one of the students held up this banner – several of the students held up this banner that basically was just making fun of events. But the Supreme Court upheld the ability of the school to impose a sanction on the student because it was interpreted as pro-drug speech. Okay. So, the track record between 1969 and 2006 or seven had not been very good. And so then about two terms ago, the Supreme Court addressed this in the Mahanoy School District case involving a young woman who was in middle school and was very disappointed that she had not made the – or I guess high school – had not made the varsity cheer squad.

And so sent out on Snapchat a snap that said, “Fuck cheer, fuck school, fuck softball, fuck everything.” And the question became whether or not the school could punish her for that off-campus speech. And so the Supreme Court ultimately said, “No, it can't.” And it was the first time between 1969 and that decision that the Supreme Court had found that the First Amendment protects students' rights and so expanded on that. This LM case would've been an opportunity to further clarify what that means, and particularly the two exceptions to protection: whether or not that you could expect substantial disruption or whether or not it invaded the rights of others.

The lower courts in this case had vacillated between those two rationales. The district court had held that this invaded the rights of others even though this was just a passive T-shirt. It wasn't accosting any particular student.

Nico Perrino: What does it even mean to invade the rights of others? Presumably, if you're invading the rights of others that would be free from First Amendment protection. But the contours of that were pretty narrow.

Bob Corn-Revere: Well, that’s right. Well, the contours of that were pretty narrow, but they also weren't well-defined because it was something done case-by-case by the lower courts. But there's some hint of that in the Tinker decision itself because there were two Fifth Circuit decisions that had preceded Tinker that had gone in opposite directions. And they were involved in the wearing of what were called freedom buttons in a school where in one case students were wearing the buttons and the court held that they had the right to do that because they were doing it passively. But in another case, students were actively accosting other students and forcing them to wear buttons as well.

And that was seen as the example of invading the rights of others. They were having other students who didn't wanna be engaging in this speech. But the act of the students to get them to participate, uh, was invading their rights. And so, that was what was in front of the court when it decided Tinker and that was sort of a good clue as to what that term meant. But then you'll see different fact patterns, different cases in the lower courts that address that as well. But the lower court in LM said that simply wearing a shirt invaded the rights of others because apparently they were either hurt or offended by the message, which typically is not sufficient to meet that standard.

It went to the First Circuit, and the First Circuit affirmed but on different grounds and said that this was more in the vein of a substantial disruption in that – not that it caused a riot or caused physical confrontations or anything like that but because it created a poisonous atmosphere at the school. And so, it was an expansion of this substantial disruption test that Tinker established but in ways that are really hard to define and expand the exceptions that allow the government to restrict what speech students can engage in.

Nico Perrino: When the Tinker court was establishing that substantial disruption exception to First Amendment protections in the educational environment, what were they conceiving of as a substantial disruption? Is it like bringing a bullhorn, for example, into school or parading through the school in a way that disturbs classes? Or were they actually thinking about the content of the speech that the students might be engaging?

Bob Corn-Revere: Well, no. They were talking about disrupting the normal patterns of the school. And you had disagreement on the court as to whether or not wearing the black armbands met that test. Justice Black, who famously described himself as a First Amendment absolutist, dissented and said that it did disrupt the work of the school in that the math teacher in Mary Beth Tinker's math class said that his lesson plan was almost wrecked because students were distracted by it. He talked about other students who'd lost family or friends in Vietnam who were gonna be upset by it and so on.

So, he had a different threshold for what constitutes substantial disruption, whereas the court's majority said that it didn't meet this. And it couldn't simply be the apprehension that students were going to confront ideas that they found discomforting. And again, that's something that has been worked out on a case-by-case basis and mostly in the lower court sense.

Nico Perrino: Doesn't the substantial disruption standardly – doesn't it open itself up to sanctioning a heckler's veto of sorts? If your speech is so controversial or so offensive that it could create an environment where other students disrupt the educational environment, then the high school or in this case the middle school would be justified in censoring your speech.

Lee Levine: Inside the school. Yes. And that's the conundrum here. On the one hand, you've got this substantial disruption standard which by definition means that speech that you couldn't punish in the outside world because it caused some sort of disruption…

Nico Perrino: Like fuck cheer.

Lee Levine: You can censor or punish inside the school environment because the school is a unique educational institution. A court was only willing in Tinker to go so far and say there has to be a substantial disruption or a real threat of a substantial disruption. But you are right. If the substantial disruption is caused by people who are offended by the speech, yelling at the student who's speaking in the middle of math class, I think most courts would say that's substantial disruption. And that is a way in which students do not have full First Amendment rights inside the school.

On the other hand, the other half of the test, invading the rights of others. You put your finger on it earlier, Nico. Well, if it invades the rights of others it's not protected by the First Amendment at all.

Nico Perrino: Yeah. When I think of that I think of preventing a student from going to the bathroom.

Lee Levine: Right.

Nico Perrino: Or punching a student, for example.

Lee Veine: So, the real question is does it mean more than that? Does it mean doing something that would be wholly protected in the outside world but is not protected inside the school because it inflicts emotional distress on a group of students within the school and makes it hard for them to pursue their education in a meaningful way? The courts never said that. But I think that's what the district court in this case was kind of getting at.

Bob Corn-Revere: It was.

Lee Levine: But as Bob pointed out, the Court of Appeals said, “No, no, no. We're not relying on that ground. We're just gonna stretch substantial disruption beyond any reasonable comprehension.”

Bob Corn-Revere: That's right. That’s right.

Lee Levine: So now, it’s screwed up on both sides of the test.

Bob Corn-Revere: And sort of melded the two in a weird sort of way.

Nico Perrino: It looks like a weird new sort of harassment stand.

Bob Corn-Revere: It is. And it's particularly difficult because it also introduces viewpoint discrimination into the mix, which is something that the Court of Appeals did not address even though it had been argued below. That you have a middle school that has things like pride celebrations, or even on its own social media page has posted students wearing shirts that have slogans like he, she, they all okay. Things like that. And so you can have one viewpoint in the school, but if you have a contrary viewpoint, then you can't. And that is one of the reasons why I see this as a missed opportunity both to reaffirm and to clarify Tinker. And you're right, Nico.

This does create a heckler's veto problem in that you have instances in the school where you will have someone wearing a shirt in response or some sort of symbolic clothing to respond to other speech they see in the school. And yet, it is the potential reaction to that that causes the argument that the school has an interest in preventing disruption. Actually, I represented Mary Beth Tinker in an amicus brief in a case that raised precisely that issue – the Dariano case – in which you had Cinco de Mayo celebrations and certain students thought, “Well, I really am a little bit offended by that.” And so, they wore American flag T-shirts to Cinco de Mayo.

And the school thought that would be potentially disruptive based on perhaps the response that Hispanic students would have to seeing people wearing American flag shirts in response. And so, they forced them to turn the shirts inside out and then to go home and wear different clothes. We hoped the Supreme Court would take that opportunity to help clarify how far Tinker extends. But unfortunately, cert was not granted in that case either. And so, student speech and particularly K to 12 student speech is an area where the court has not frequently weighed in. And until very recently when it did, it was pretty much not good news for student speech.

After the Mahanoy School District case, the trend seemed to be moving in a better direction. And it would be helpful as this case illustrates, the LM case illustrates, for the court to further clarify what this area of the law means.

Nico Perrino: Does there need to be a test for substantial disruption? I don't know if I'm an educator or a principal. I could know what actually constitutes substantial disruption versus what is just middle schoolers being middle schoolers.

Bob Corn-Revere: But you see, that is the problem of common law development of constitutional standards. They are by necessity rather imprecise. But because you have a body of law that develops over time, based on multiple fact patterns you can use that mosaic to help understand what that means. And you can look at the various cases. Now, the problem is – and that that was a problem in the LM case. You had decisions going both ways in this. And the more cases that are actually decided, the better it is to help pinpoint what those rather vague tests mean.

Lee Levine: Just to jump back to what we were talking about in the context of the first subject we discussed.

Nico Perrino: The Laurel Libby case.

Lee Levine: Yeah. The number of cases the court takes and the steady diminution of those cases over the last several decades – this is the end result of that phenomenon. And it's not good. If the court is going to announce a constitutional standard like it did in Tinker, one that of necessity you don't want the Supreme Court writing a statute and saying, “Here’s the seven subparts of what substantial disruption means and doesn't mean.” Because the court's supposed to be deciding cases and controversies. But it does have an obligation, especially when the lower courts are in conflict, over what it means on almost exactly the same fact pattern.

The court does have an obligation to take those cases, and this is one of those cases. There's a footnote in Justice Alito’s dissent where he cites the cases in the various circuits that go completely opposite ways on close cousins of this issue. That's what the court's there for.

Bob Corn-Revere: That's right. That’s right.

Lee Levine: So saying, “We're not gonna take this one,” is I think a shirking of responsibility.

Bob Corn-Revere: I think it's useful to mention the dissenting opinions in this case. Both Justice Thomas and Justice Alito descended from the denial of cert. And both of them were interesting for their own reasons. Justice Thomas, because he very famously doesn't believe students have First Amendment rights. And he basically said, “So long as Tinker is still the law, even though I disagree with it, we at least should be applying it and expanding on it or at least explaining what we mean by it.”

And Justice Alito wrote a very fulsome dissent from denial of cert that went through these very factors that Lee was talking about, and the various decisions that go in different directions that require the court to clarify what this area of the law means.

Nico Perrino: Let's leave that there now. I believe we could probably go on that subject for an hour and a half. Actually, I do wanna ask, does it matter that it was in a middle school as opposed to a high school? Well, one of the students in the Tinker case was in middle school.

Bob Corn-Revere: Well, that’s right. Mary Beth.

Lee Levine: And in the Mahanoy case.

Bob Corn-Revere: Yeah. And Mahanoy. And Mary Beth was 13, I think, at the time that she wore the black armband. Her brother was 15, I think. But he was in high school. She was in middle school. And so, it really should not make a difference. Now, you may have different standards or at least a different level of tolerance between a high school and a middle school for what could lead to substantial disruption, but the test would be the same.

Nico Perrino: All right. Let's go to a controversy that blew up for a hot second, a few weeks ago involving former FBI Director James Comey. On Thursday, May 15th he posted a photo on social media of seashells forming the numbers 86, 47. I didn't know this before this controversy erupted, but apparently 86 is an old slang term that means to dismiss or remove. And 47 refers to President Trump being the 47th US President. Now, some people have interpreted 86 to mean remove through killing, I guess. I don't know if that was a usage. It seems to have kind of been debunked as a common usage for that. You saw people on the political right and left using 86 to refer to prior presidents, including President Joe Biden.

Nevertheless, Comey made the post. You had Homeland Security Secretary Kristi Noem saying the Secret Service was going to investigate him. Comey did delete the post on the same day stating, “I didn't realize some folks associate those numbers with violence. Never occurred to me, but I opposed violence of any kind. So, I took the post down.” On Friday, May 16th, the day after he made the original post, the Secret Service interviewed Comey at a Secret Service office in DC. He returned home later that night. What would this be if not protected speech? A true threat, incitement to commit lawless action?

Bob Corn-Revere: Of course, it's protected speech. This is just proof.

Nico Perrino: Well, walk us through that Bob.

Bob Corn-Revere: Well, this is just proof we live in insane times. First of all once you –

Lee Levine: I would say scary times.

Bob Corn-Revere: Well, that too. Once you decode the message, even if it says remove – even if it had been more direct than that, it still doesn't represent a true threat. The Supreme Court has addressed this. And you go back to the cases from the ‘60s. When was Watts? Was 1969? And this was a case in which someone was at a demonstration when demonstrating against the Vietnam War and said, “If they draft me and they put a rifle in my hands, the first person I'm gonna get in my sights is LBJ.” Okay. That ultimately went to the Supreme Court that was taken as a threat against the president. And the court said no.

Look at the context – that this is a heated statement in the midst of a political demonstration. It is not a serious threat of harm.

Nico Perrino: It's hyperbole. Political hyperbole.

Bob Corn-Revere: Political hyperbole. And the Supreme Court more recently in the Counterman case that Lee mentioned earlier talked about what it takes to constitute a true threat. And again, set the bar very high saying that you have to have both an intent to – your statement has to be taken as an actual intent to – there has to be mens rea for the threat to be taken seriously as well as a reckless disregard for how it's going to be perceived. So, this doesn't even come close to true threats neighborhood, let alone being construed as a true threat. It's really just retaliation against a perceived political opponent.

Nico Perrino: Well Lee, could it be incitement? Maybe he wasn't threatening the president, but he was inciting his audience perhaps to do what it takes to remove the president. Maybe through unlawful means.

Lee Levine: No. To be incitement, it would have to be a direct threat of imminent lawless action.

Nico Perrino: Lawless action.

Bob Corn-Revere: Bob is right, and I'm right. It's both insane and scary. This is just another example of the president and his minions using their power to intimidate, retaliate against, and harass their political opponents. And whether that's the news media, the universities, or members of the opposition party it's pervasive now. And I'm less worried – I'm not worried at all about the nuances of whether this is arguably not protected by the First Amendment. It's obviously protected by the First Amendment. I'm worried about what recourse there is for this kind of conduct by the executive branch of the government.

Bob Corn-Revere: Yeah. And quite apart from this political moment, the idea of being able to so easily construe something as a threat and to deploy law enforcement to investigate or to sanction someone for that kind of speech is really chilling. I handled a case a number of years ago involving a courthouse protester who had put signs on his van outside a courthouse in Vermont saying that a certain judge was a butcher of the Constitution. And because he had written something online about how when the smoke clears, people will wonder what happened in this situation.

And because he used that language they said, “Well, he was obviously threatening the judge because he must have had a bomb in his truck because he used that expression.” And so again, ultimately we won a case against the law enforcement officials who had served a trespass notice on him for this demonstration. But again, the threshold that you set for how you can sanction speech and label it a threat when it's clearly political hyperbole is something that really requires close attention.

Nico Perrino: Well, there's a lot of ways to make someone's life miserable short of actually prosecuting.

Bob Corn-Revere: Oh, absolutely.

Nico Perrino: James Comey would know. He was the former FBI director. There's a lot of ways the FBI can really mess up someone's life short of actually pursuing a prosecution. But in this case, it seems like he was let go. And since May 16th when he was interviewed, I haven't heard of anything coming from it.

Bob Corn-Revere: Right.

Nico Perrino: So, presumably nothing will. But the chilling effect is there, right? If you send one of these messages, you might get a Secret Service officer at your door. What would a podcast be without a discussion of Harvard at a moment like this? Our last podcast was also about Harvard. It wasn't all Harvard, but much of it was Harvard. We were talking with Heather McDonald of the Manhattan Institute, but we hadn't yet learned of the latest volley in this Trump- Harvard war. So, to bring our listeners up to speed – they probably already know the history but just for good measure, Harvard filed a lawsuit against the Trump administration in April after the federal government froze $2.2 billion in federal research grants.

They did that because the Trump administration had asked Harvard to do some things that it just couldn't in good conscience do. Things like impose ideological litmus tests for students, enforce a comprehensive mass ban, conduct an audit of disfavored academic departments, punish students and faculty that the administration wanted punished. Harvard had argued that these demands and funding cuts violated its institutional autonomy and constitutional right to free speech and academic freedom. I read a New York Times report that said that Harvard is now subject to something like eight different federal investigations.

And one of those investigations was related to its visa program that allows students to come to the university to study. And Harvard received a letter from the administration in May announcing it was revoking Harvard's ability to enroll international students. Its allegation was that Harvard wasn't responding to requests that the administration made about these students. Now, the statute governing this program does list out a number of things that the administration can request related to the program records the administration can request.

Harvard did respond to that request, but argued that many of the administration's demands for records extended beyond the statutory authority of the administration to demand. It was demanding too much information, things that it wasn't allowed to demand and that Harvard wasn't required to turn over. The administration responded and said, “No, we want all these things,” including new demands.

Bob Corn-Revere: Five years of any video of demonstrations.

Nico Perrino: Well, that's the last request that it made. Right? So, it said in its notice to Harvard that it was revoking this program. That if it wanted the possibility of having its visa program restored, that Harvard had to turn over all audio or video footage in the possession of Harvard University of any protest activity involving a non-immigrant student of a Harvard University campus in the last five years. That's quite the request. And it's a request that as we at �鶹��ýIOS have pointed out would not just implicate non-immigrant students. And non-immigrant is kind of a term of art. A visa student. Student on visa at the university. It would also implicate citizens. If you have one visa student who partook in a protest of a thousand people, you would need to turn over all audio and video footage of that protest.

Harvard couldn't, in good conscience, comply with this demand either. It filed a lawsuit and there was a very quick, temporary restraining order placed on the administration. I don't really wanna get into the nitty gritty of this necessarily. But I want to ask you two – Harvard filed a lawsuit after that initial funding revocation saying it violated the institutional autonomy and First Amendment rights of Harvard University. Does this latest step by the administration lend credence or evidence to a First Amendment retaliation claim?

The idea that because Harvard stood up for itself, it is now subject to eight investigations and is losing its visa program and there are threats to its tax-exempt status and there are threats to further remove grants that it has received from the administration. Let's start with Lee on this one.

Lee Levine: As the great Sarah Palin would say, the answer to your question is you betcha. You have to be deaf, dumb, and blind not to recognize what's going on here. This is part of a coordinated attack on the pillars of civil society. The courts, the universities, the press. It is another one of them saying the quiet part out loud thereby both their conduct and their words. No reasonable person could think that this was not retributive and retaliatory and an effort to just bludgeon through the use of the legal processes and powers that the government has at its disposal. I think the courts have been quick to step in.

And this is another one of those where I hope that there is some confluence of cases that do wind their way up to the Supreme Court, that the Supreme Court has the guts to take and pronounce in very clear terms that we just don't tolerate this in a democracy that values freedom of expression.

Nico Perrino: Well, let me ask you Bob. So if the court takes discreet cases and controversies, what do you do in a situation where – okay. Let's say you have a decision all the way up to the Supreme Court that says that the administration can't revoke funding from Harvard for this reason. Or let's say you have a decision all the way up to the Supreme Court where it says, “No. You cannot revoke Harvard's visa program for this reason.” You still have six, seven, eight other investigations. You have these alphabet [inaudible][01:01:13] of agencies that can make Harvard's life miserable for the next four or however many years. It's like this situation in Skokie where you had this kind of whack-a-mole approach to preventing the Nazis from rallying there. You get one decision from one court and then you have a new ordinance passed.

Bob Corn-Revere: But ultimately it did go to the Supreme Court and was decided.

Nico Perrino: But the Supreme Court can't say – I guess what I'm trying to get at is – stop badgering Harvard. They can't issue a ruling like that. Stop badgering Harvard. The only reason you're badgering them and X, Y, and Z reasons right now is because you don't like them or because of their protected speech. It can't do that. It can only render a ruling on a discreet issue.

Lee Levine: I would take issue with that.

Nico Perrino: Please.

Lee Levine: I would assume that in any one of these cases that reached the court, part of Harvard's showing of retaliatory motive and harm that Harvard suffered would be in the form of pointing to this as part of a coordinated campaign to punish and retaliate against the university. So, all of that stuff would be before the court. Yes, they would be rendering a decision just in the one case before it. But they would be well served to say, “There is persuasive evidence. This is part of a pattern of practice by the federal government to single out this university for punishment because of its exercise of its rights as an autonomous educational institution, disseminating and gathering and creating information, all of which is protected by the First Amendment.”

And I would hope that the court would issue a sweeping enough decision that assuming – and something of an assumption that the administration is in the mood to follow court orders, would say, “Okay. We can't do this anymore.”

Bob Corn-Revere: Well, to a certain extent the nature of the remedy would be determined by the magnitude of the infractions that ultimately are presented to the court. And so, if it does lead to a coordinated campaign or you have the court recognize it as a coordinated campaign, it can fashion the remedy accordingly.

Nico Perrino: But what if there are some legitimate investigations, for example, violation of Title VI?

Bob Corn-Revere: Well, there may be. And violation of Title VI is a good example of that because I think you can probably find instances where Title VI has been violated. But those are things that the courts that have looked at it so far have said, “You've made a prima facie case according to the students who were bringing Title VI actions. But we need to adjudicate whether or not that is there.” And that's what's missing here with the administration's various actions against Harvard and other schools. It is very Alice in Wonderland. Verdict first, trial afterwards. Although they really wouldn't care about having a trial. They just want the verdict.

And so, it's also an illustration of how the investigation can make cases be the punishment, and this goes even beyond the investigation issue. This is exerting the punishment really upfront. And so, it illustrates why it is so important that people who have decided, those institutions that have decided to stand on their rights have done so promptly and have been getting good rulings. Whether it's Harvard or whether it's the law firms that have been subject to executive orders or in the cases we were talking about earlier with public broadcasting. We will see an increasing number of those cases being decided.

The one thing to me that is heartening is that courts, for the most part, have been responding appropriately by applying the law where the –

Bob Corn-Revere: In the WilmerHale case where Judge Leon had something like 27 exclamation points in the course of his order.

Nico Perrino: The judges and justices might not have a standing army to enforce their rulings, but they do have exclamation points.

Bob Corn-Revere: That's right.

Nico Perrino: All right. We have to leave it there, folks. Bob Corn-Revere, as always thanks for coming on the show.

Bob Corn-Revere: Thank you, Nico.

Nico Perrino: Lee Levine, thanks for coming back. Hope to have you on again sometime in the future. I am Nico Perrino and this podcast is recorded and edited by – I'm gonna start that over. I am Nico Perrino and this podcast is recorded and edited by a rotating roster of my �鶹��ýIOS colleagues, including Sam Li and Chris Maltby. This podcast is produced by Sam Li. To learn more about So to Speak, you can subscribe to our YouTube channel or Substack page, both of which feature video versions of this conversation. You can also follow us on X by searching for the handle free speech talk. Feedback can be sent to sotospeak@thefire.org.

Again, that's sotospeak@thefire.org. And if you enjoyed this episode, please leave us a review on Apple Podcasts or Spotify reviews. Help us attract new listeners to the show. And until next time, thanks again for listening.