← So to Speak: The Free Speech Podcast
So to Speak: The Free Speech Podcast
Ep. 239: Columbia University, Mahmoud Khalil, DEI, law firms, and more
01:04:24
We explore how censorship is impacting institutions — from universities to law firms to the Maine House of Representatives. Timestamps: 00:00 Intro 01:40 Federal government cuts Columbia’s funding 16:57 Updates on the Mahmoud Khalil case...
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- [00:00]
Nico Perino
This is the perfect encapsulation of what it means to be a civil libertarian, where you're always looking at what is the worst case scenario and how do we prevent laws from being used in the worst possible way.
- [00:12]
Connor Fitzpatrick
It was also how the framers thought of the Constitution, separation of powers. It's why the Bill of Rights exists. The Bill of Rights is nothing but a list of no trespassing signs for the government. Here's what you, the all powerful government, are not allowed to do. Somewhere I read of the freedom of speech.
- [00:28]
Nico Perino
You're listening to so to Speak, the free Speech podcast brought to you by fire, the foundation for Individual Rights and Expression. Hi, 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. Today we're talking about all the free speech stories that are fit to print or at least fit to talk about within the hour or so in which we talk about them. To my right is Lindsey Rank. She's our director of campus rights advocacy at fire. Reminded me yesterday that this is your second time on the show.
- [00:59]
Lindsey Rank
This is my second time on the show.
- [01:00]
Nico Perino
All right, well, welcome back. Thanks. First time in the studio, though.
- [01:03]
Lindsey Rank
First time in the studio.
- [01:04]
Nico Perino
Very good.
- [01:04]
Lindsey Rank
Yeah.
- [01:05]
Nico Perino
And to my left is Connor Fitzpatrick, supervising senior attorney at fire. Connor, first time on the show.
- [01:10]
Connor Fitzpatrick
First time on the show. They're letting the line litigators out of.
- [01:12]
Nico Perino
Their cages, much to my chagrin. And across from me is repeat guest Will Creely, legal director at fire. Will, welcome back.
- [01:20]
Will Creely
Can I get friend of the show status? Can we?
- [01:23]
Nico Perino
Yeah, yeah, you're friend of the show.
- [01:25]
Will Creely
I think it's been like, if you, if you appear like four or five times, you should be friend of the Show.
- [01:29]
Nico Perino
You appear 15 times, you get a watch.
- [01:31]
Will Creely
I look forward to it.
- [01:32]
Nico Perino
I'm taking my son to Disney World next month. First time ever. I'll get you a Mickey Mouse.
- [01:37]
Will Creely
It gets better and better.
- [01:40]
Nico Perino
All right, pivoting from our morning rapid response meeting where we spent what, 30, 35 minutes talking about the situation at Columbia, Figure we should talk about it with all of our listeners. Now, for those who aren't up to speed, on Friday, March 7, the Department of Justice, along with the Departments of Health and Human Services and Education Department, as well as the general administration, he got the whole Alphabet soup of the federal government involved here, they announced the immediate cancellation of approximately $400 million in federal grants and contracts at Columbia University. They cited the institution's continued inaction in addressing the harassment of Jewish students. And then on Thursday, March 13, that same Alphabet soup of federal agencies demanded that Columbia formalize, adopt and promulgate a definition of antisemitism, put their Middle East, South Asian and African studies departments under academic receivership, abolish the university judicial board, and centralize all disciplinary processes under the office of the President, among other demands, in order to get that aforementioned $400 million back. Last Friday, the university capitulated. Wrote I think it was like a four or five page letter of all the things that they were going to do, some of which might be good ideas, some of which we have problems with. Lindsey, what's your takeaway?
- [02:59]
Lindsey Rank
I mean, my biggest takeaway is that we're seeing an unprecedented amount of pressure on institutions in this moment. And I'm really concerned about some of the policies that Colombia especially like the anti Semitism policy. For example, in cra, our campus rights advocacy department, we see all the time this institutional censorship of both sides of this Israel Palestine debate. And pro Palestinian student protesters have certainly been at the brunt of that. And I'm really concerned about seeing this definition of anti Semitism be used to further censor this discussion on campus.
- [03:41]
Nico Perino
So let me read the definition here so we know what we're talking about. This is their definition of antisemitism is Anti Semitism is prejudice, discrimination, hate or violence directed at Jews, including Jewish Israelis. Anti Semitism can manifest in a range of ways, including as ethnic slurs, epithets and caricatures, stereotypes, anti Semitic tropes and symbols, Holocaust denial, targeting Jews or Israelis for violence or celebrating violence against them, exclusion or discrimination based on Jewish identity or ancestry or real or perceived ties to Israel and certain double standards applied to Israel. Will I see you shaking your finger?
- [04:16]
Will Creely
There's a bunch of problems in there. I mean, again, no matter how offensive, even deeply so, that is to many Americans, most all some. There's a lot of protected speech in there. That last clause is the one I was waiting for. That's why the finger shake was precipitated.
- [04:32]
Nico Perino
By double standards applied to Israel.
- [04:33]
Will Creely
Double standards applied to Israel. As we pointed out now for 10 years on the blog and on our website and in our public statements, double standards are protected political expression. That's core protected political speech. But if we may just to set aside some of these specific requirements, just to set aside how high the Alphabet soup of government agencies told Colombia to jump, I just want to talk about the process by which all this is happening before we get to the Actual policy changes and the terms of Columbia's capitulation. This is an extortion. This is a shakedown. This is, hey, nice university you got there. Would be ashamed if something were to happen to it. This is not following the typical procedures. In fact, the statutorily described procedures for ramifications for failing to comply with one's obligations as a funding recipient under federal anti discrimination law. As a group of constitutional scholars from both the left and the right pointed out in an open letter, this is not how this process is supposed to work. And there's a good reason for that. Because no matter what side of the political divide you're on, you should not want the federal government to be able to hold the metaphorical gun up to the head of an institution and say, we don't like the way you're dealing with speech on your campus, and we're going to essentially kneecap you until you capitulate. Back in the Obama administration, fire had a big problem with the Obama administration's Department of Education, their Office for Civil Rights, and their definition of sexual harassment, which we thought was so expansive, much in the way that definition of anti Semitism is expansive, that it reached core protected speech.
- [06:16]
Nico Perino
But the definitions in those cases were at least promulgated as a result of an investigation and as a resolution. Even if we thought that's not something the government could require of these institutions, there was at least a process by which this happened.
- [06:27]
Will Creely
That's a great point.
- [06:28]
Nico Perino
Here. It's we're taking away $400 million, and you either do these nine things or you're never getting federal funding ever again.
- [06:35]
Will Creely
That's exactly right. And that's the problem, like, no matter what one thinks of the results, and I've got a lot of problems with them, this is the poison fruit of the poison tree, which is the abandonment of any process here, which is the.
- [06:48]
Lindsey Rank
Growth of the poison soil.
- [06:50]
Will Creely
I will say, though one quick note, even on that blueprint, that also, I think, was closer to a kind of governmental bullying, if you will, than the process that the legal scholars so ably described in their letter and our own Tyler Coward described on our blog. What's supposed to happen is there's supposed to be notice. The university is supposed to have an opportunity to respond. There's supposed to be a congressional intent to defund, blah, blah, blah.
- [07:18]
Nico Perino
There needs to be an administrative hearing or the dog files a lawsuit.
- [07:21]
Will Creely
There you go.
- [07:21]
Nico Perino
And that didn't happen in either of these cases. They just yanked the funding.
- [07:24]
Will Creely
Exactly right.
- [07:25]
Lindsey Rank
There just needs to be due process. I mean, like we say this in the campus disciplinary setting all the time. It's really not different here. I mean, the reality is that anytime the punishment is promulgated by the government without due process, that punishment is suspect.
- [07:41]
Will Creely
It is. And again, it allows for arbitrary enforcement of expansive definitions of anti discrimination concepts that really just at the end of the day, comport to what the administration doesn't like anyway.
- [07:53]
Nico Perino
So I'm reading here the Wall Street Journal's exclusive report that it was going to yield to the Trump administration's demands. And it has some reporting on the background discussions that happened within Columbia's administrator's office. They said. A Columbia senior administrator said the school considered legal options to challenge the Trump team, but ultimately determined the federal government has so many available levers to claw back money it would be difficult to fight. Additionally, the school believed there was considerable overlap between needed campus changes and Trump's demands. Right.
- [08:24]
Will Creely
I mean, let's be clear, Columbia does not have clean hands. Right. Columbia allowed activities on campus that I do think constitute violation of federal anti discrimination law. That's the truth. And so Colombia perhaps did not feel itself well situated. But the problem that we're seeing now, and we're seeing this not only in higher ed, but with regard to private legal practice, with regard to media, is that the administration is isolating institutions, whether that's abc, Columbia, Perkins, Coie, and putting a lot of pressure to bear on them and essentially saying, you're going to play ball with us or we're going to box you out and we're going to seriously threaten your existence. And that kind of separate from the herd attack mentality is going to lead to further cave ins and ultimately threaten our ability to speak out in ways that dissent from the federal government's preferred line.
- [09:18]
Nico Perino
Yeah, Connor, you had something you wanted to get in, but I'd also like to get your perspective on why, as civil libertarians, we care about process. Right. Why is it a problem that the Trump administration is just coming in over top, unilaterally yanking the funding without any sort of process prior to that by which Colombia could defend itself.
- [09:36]
Connor Fitzpatrick
So process is core to being a civilized society. The right to due process is codified in the Fifth Amendment, it's codified in the 14th Amendment. It's what makes an ordered, civilized society. The idea that you can't be deprived of life, liberty or property without due process. And we saw somebody from the administration on one of the Sunday shows arguing that, well, the victims of crimes weren't afforded due process, so why should the criminals be afforded due process. But criminals. Right, but the thing that separates the government from criminals is due process is using adjudicative bodies like a jury and a courtroom to decide who did bad things and what those consequences should be. So due process isn't just a procedural technicality. It's the whole ball game when it comes to having an ordered, civilized society. And then the second point just sort of jumping off to what Will is saying about the danger of using these funding levers as ways to cajole universities and other institutions to doing what you want. I would invite anyone, regardless of where they are on the political spectrum, to imagine what their view would have been if the Obama administration had tried to cut funding from Liberty University or Robert Morris University on the basis that they didn't like what those universities were teaching. Same thing if you're on the left. If a Republican administration had tried to gut UC Berkeley. It's a power that once it's uncorked, governments will want to use and they will abuse it. And so the way that the First Amendment stands in the way is by saying, we're going to keep this Pandora's box closed.
- [11:16]
Nico Perino
Do people have a problem thinking in the long term like that? The consequences of any immediate action, Maybe right now you're conservative, you have the two branches of government, you have conservative justices in the majority on the Supreme Court, and you're like, now's the time to own the libs because they've owned us for the past 10 years. What's the problem with that?
- [11:37]
Will Creely
Hey, you know what? These boots feel pretty nice. I actually like stomping around with these. These are great. You know, before I didn't want anybody wearing the boots, but now that I'm wearing them, I get it, you know, like, yeah, it sucks. This is the constant plight of the civil libertarian, right? We have to say, wait a second, think about it.
- [11:51]
Nico Perino
It's not good politics though.
- [11:52]
Will Creely
No, think about that turnkey authoritarianism that you're allowing for. Think about, as Connor put it, the weapons you're uncorking, the Pandora's bo. Your opening. No, it's. It's hard to get that on a, on a bumper sticker maybe. But dammit, that's our job, right?
- [12:05]
Lindsey Rank
It's hard to be principled once you're in a position of power, right? Once you're in the position where you can get what you have wanted for a long time, you know, it's hard to, to keep to those principles like due process.
- [12:18]
Nico Perino
I think part of it also is the recognition maybe in the executive Branch that they only have a finite amount of time to get this stuff done. It's either four years or maybe just maybe just two years as the congressional seats will flip in the midterms. I don't know.
- [12:34]
Will Creely
They've been sensitive about that.
- [12:36]
Nico Perino
It's like, so let's do an end run around some of these processes in favor of expediency as opposed to something that's gonna take a little bit longer.
- [12:45]
Will Creely
It's the classic disrupting playbook, right? Move quickly and break things. Unfortunately, some of the things they're trying to break are our system of ordered liberty, the First Amendment. That's where we come in.
- [12:54]
Nico Perino
In our statement about the Columbia changes we wrote, any changes made as a result of this flawed process are inherently suspect. If Colombia, with its immense resources and influence, can't stand up to government demands that threaten free speech, what are other colleges to do? Behavior that gets rewarded gets repeated. And then I'm looking at this press release put out by the various agencies yesterday, and they write, Columbia's announcement is a positive first step in the university maintaining a financial relationship with the United States. The decisive steps the task force that is the administration's task force fight on combating anti Semitism has taken with Columbia have yielded positive results that should serve as a roadmap for universities with similar problems across the country. In a statement from the government, one government official Other universities that are being investigated by the task force should expect the same level of scrutiny and swiftness of action if they don't act to protect their students and stop anti Semitic behavior on campus. It's going to keep going is more or less what they're signaling, right?
- [14:02]
Will Creely
Can I get to an interesting point that Conor raised a second ago? Connor said, if you're a conservative, would you want the Obama administration or Democratic administration going after liberty? And I have seen the point made by some people that, wait a second. Maybe colleges and universities shouldn't be on the federal dole at all. Maybe colleges, universities should be outside of the federal government spending. And maybe that's the issue. Surest way to bulletproof your right to teach as you want or to allow. I was just getting to Hillsdale, right? So I can think of folks who are listening to this podcast and saying, wait a second, fire. What about Hillsdale? What about other schools that don't accept federal funding? And I think the important thing to remember there, right, is not that we're saying you have this automatic right to federal funding, it's that federal funding cannot be conditioned on taking actions that go Outside of either statutory or constitutional bounds. Right. We cannot say that the federal government's spigot, once it's turned on, then Columbia is forever enthralled to the political demands of whoever is in office at the time. That's no way to run a lemonade stand or a university. It's true that schools have a choice, even if at this point it's a fairly conceptual one, as to whether or not to accept federal funding. But I want to be clear about the fact that just because you accept federal funding does not mean the government can run roughshod over you, and nor should it.
- [15:25]
Nico Perino
So it can't condition its funding on giving up your constitutional rights, so to speak. This is the unconstitutional conditions doctrine. My understanding is that doctrines can be a bit of a mess.
- [15:33]
Will Creely
It's a bit of a mess. But broadly speaking, broadly speaking, theoretically, I don't think any one of us want to live in a situation. And as the legal scholars pointed out in their letter, those kinds of protections as to federal funding being cut off for failure to comply with federal anti discrimination laws, they protect not only schools from arbitrary action, but also K12 schools, nursing homes, any of the many institutions that receive federal funding. If all of that can be flipped on a dime at the outcome of an election, we've got a much bigger problem.
- [16:03]
Nico Perino
Well, you don't get Medicare if you keep talking.
- [16:07]
Lindsey Rank
Well, and if this argument that schools should not be on the payroll of the federal government, if that's a legitimate argument, which I'm not going to argue one way or the other, but if that is a legitimate argument, then it should be a legitimate argument at the end of a process. Right? Like, if they actually believe that we need to stop funding these institutions, then let's go through the process and prove that that is the right way to go.
- [16:32]
Will Creely
Or, you know, if you're at my school, I'm saying, wait a second, you're changing up the terms of the contract. You know, it's like when you sign up for a cable TV company and then all of a sudden, like, after your introductory deal is done, everything spikes up. Columbia might be asking, what the hell? We signed up on these terms. And even as our own Tyler Coward pointed out, there's some, some discretion there for the government. You know, wielding it in this unprecedented way to achieve a certain political result is ugly. It's dirty pool.
- [16:57]
Nico Perino
Let's move to our next story now revisiting the Mahmoud Khalil case, which we discussed on our last podcast. So I'm just going to assume that our Listeners have some familiarity with this case. It's also captured headlines. But as a reminder, Mahmoud Khalil recently graduated from Columbia University. He was a spokesperson for some of the protesters. He's not alleged to have engaged in any actual legal activity, but he was a spokesperson, highly visible, didn't wear a mask at these protests, did so because he said, I haven't done anything wrong. I don't need to wear a mask. There are deportation proceedings against him. He was whisked off to Louisiana. The case is going through the courts right now. But the deportation, at least on the notice to appear, initially said that he was being deported under a provision of the Immigration and Nationality act whereby the Secretary of State has authority to deport someone if he or she determines that their, quote, presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States. Fire raised alarm bells because one this provision, as you wrote in our amicus brief, Connor, is a loophole with infinite diameter. I love that phrase.
- [18:05]
Will Creely
Such a good line.
- [18:06]
Nico Perino
Such a good line. But also the administration, every time it's trying to justify this action, has cited Mahmoud Khalil's protected expression. Marco Rubio said, we will be revoking the visas and are green cards of Hamas supporters in America so they can be deported. Trump hailed his arrest, writing on Truth Social. We know there are more students at Columbia and other universities across the country who have engaged in pro terrorist, anti Semitic, anti American activity and the Trump administration will not tolerate. Caroline Levitt, the press secretary, held up flyers at one of the student groups that Mahmoud Khalil is associated with, had distributed and said, this is propaganda. This is what they're distributing. Propaganda is also, of course, speech. But, and this is what I want to cover with you all now. The government is trying to now provide more post hoc, you might argue, justifications for his deportation. The New York Times reports that the government quietly added new accusations to its case against Mr. Kalil, saying that he had willfully failed to disclose his membership in several organizations, including a United nations agency that helps Palestinian refugees. When he applied to become a permanent US Resident last March, it said he also failed to disclose work he did for the British government after 2022. The Justice Department lawyers argued that these new allegations reduced the importance of concerns about Mr. Kalil's right to free speech. Khalil's First Amendment allegations are a red herring, they wrote. Given the new allegations, they added there was an independent basis for his deportation. Makmukhalil got his green card in November. If I'm not mistaken. Conor, what's your response for that?
- [19:44]
Connor Fitzpatrick
Oh, boy. So I think we need a cold shower of reality right now. We all know what's going on here. For weeks, the White House focused solely on Mr. Khalil's protected speech, focused solely on the posters and the flyers he handed out, focused solely on the chance at the protest, focused solely on what he was posting on social media and what he was saying about Israel and Palestine. And the idea that suddenly, two and a half weeks later, they found potentially a couple of paperwork discrepancies in his visa applications from a year or a year and a half ago. And that's really what this was all based on all along. No, it's not. We heard it from the Secretary of State. We heard it from the President. We heard it from the Baker briefing room at the White House why they're deporting Mahmoud Khalil. They told us why. So the idea that we should just all shut up and whistle a happy tune because they think they found a couple of paperwork violations in his visa paperwork is nuts. We know why this is happening.
- [20:49]
Nico Perino
But if you have an independent basis by which to deport him, and we can debate whether this is a justifiable independent basis, does he still have a viable First Amendment claim because he's filing a lawsuit, Right. Arguing. Alleging First Amendment retaliation?
- [21:03]
Connor Fitzpatrick
In my view, he should. And this is something that gets into a little bit more murky area when it comes to immigration law. And I don't want to out kick my coverage, but I'll give you an analogy. So imagine, imagine we do have a new acting D.C. u.S. Attorney here in the District of Columbia who has been rather outspoken on Twitter. I don't know how many of your listeners have been to or are in the. Are in the District of Columbia, but jaywalking here is quite common. It's far more common to see someone, I should say it's surprising to see someone actually follow the street signs. And so imagine if we get news later today saying that the D.C. district Attorney has decided to indict Alexandria Ocasio Cortez on jaywalking charges. So there may well be, and I'm sure there is, a municipal statute saying that jaywalking is a misdemeanor punishable by some thousands of dollars and 30 days in jail. But I think we would have serious constitutional concerns if one of the most prominent liberal voices in Congress and in the District of Columbia were suddenly being detained for reasons that no one else has been detained for in Washington, D.C. so how this is all going to shake out in the immigration courts? I don't know. What I do know is that the concern that this is all about his protected speech has not gone away one.
- [22:19]
Nico Perino
Iota, but will, in order for this. This independent basis to even mean anything, the omission of this information needs to be willful, as in he essentially lied about it and material to determining whether he should have received his green card in the first place, right?
- [22:36]
Will Creely
That's right, Nico. You know, I pulled it up here because I figured you were going in that direction, and I'm glad to. Let's go straight to the regulations here. The term willfully is interpreted to me knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the facts are otherwise. In order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly. Intentionally and deliberately made an untrue statement. And then, as for materiality, it's got to be material as well, right? Materiality does not rest on the simple moral premise that an alien has lied, but must be measured pragmatically in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien's application for a visa. So, to your point, there are still things that have to be proved also. And to Connor's point and his excellent jaywalking example, which I imagine you chose.
- [23:28]
Connor Fitzpatrick
Advisedly, I only ever follow the traffic laws. I'm talking about a hypothetical person that might not always use the crosswalks.
- [23:36]
Will Creely
That's right. That's right. But I would also be curious as to whether these kinds of omissions are routine grounds. I mean, this is beyond thinking about kicking your coverage. This is beyond my knowledge. I'm just a humble first amendment lawyer. I don't know these intricacies.
- [23:54]
Nico Perino
You're Atticus Finch. Your fire's Atticus Finch.
- [23:57]
Will Creely
That's kind of you. I would like that on a T shirt, please. What I'm saying here is that I don't know if failing to divest disclose your entire employment history or your membership in student organizations, if that is routinely caused for people to get bounced a year and a half later after a whole lot of hullabloo about your protected speech. So I'd want to weigh those in here. Just simply saying. Oh, no, no, we got him on this. Well, that's not enough. Now we play the feud, so to speak, for all my old family feud.
- [24:28]
Nico Perino
Listeners, I also want to know when he Submitted his green card application.
- [24:32]
Will Creely
Yeah, all that kind of stuff.
- [24:33]
Nico Perino
Right, right. I think the New York Times article suggested it might have been March, which would be a pretty quick turnaround to get your green card in November. I was talking with an immigration attorney on the last podcast, and he said it, it generally takes like a year and a half or more to get your green card in. And so one of the allegations, of course, is that he failed to disclose that he was a member of this Columbia University apartheid divestment group. I've forgetting the full name, but that was started after October 7, 2023. So theoretically, he could have submitted his green card before that group even existed. But I don't know. And this is why you have due process, right? This is why you have hearing, so you can get to the bottom of these facts.
- [25:10]
Will Creely
The one last point I'd like to make here is, regardless, to some real extent, of the individual facts of Khalil's application, setting all that aside, what Conor so skillfully highlighted in the brief that he sacrificed, you know, 72 hours of his waking life to crank out a couple weekends ago, points out the real problem here is with that Secretary of State provision, that. Which has been cited repeatedly by the administration in conjunction with the protected speech activity, that's a threat that's sitting there loaded for any administration to decide that they don't like the speech of somebody here on a green card, they're going to kick him out. And really, again, just to, you know, back to Conor's cold shower of reality, we're talking about a provision that says that somebody presents serious grounds for deportion because it's contrary to our foreign policy interests. We're talking about a grad student. You know, I mean, that's.
- [26:04]
Lindsey Rank
Well, and even aside from that, I mean, the damage, putting aside whatever might happen to Khalil, the damage has already been done with regard to students across the country in America and faculty, frankly, across the country in America. The message is already out there that if you dissent, things can happen. And that's the same message we're getting with regard to Columbia and the actions the administration has taken against Columbia, the same message that we've gotten with regard to Khalil. So the message is this same across the board, which is like, if you are a dissenter, you better watch out.
- [26:38]
Nico Perino
And this is what we call in First Amendment circles, the chilling effect. So it's not just about the one person that's being targeted. It's about the message that that targeting sends to other people.
- [26:46]
Lindsey Rank
Right. And the chill has already happened. So even if they go back and say, oh, but look at all these bad things Colombia has done, look at all these bad things Khalil has done, and even if they can prove all of that, the chill has already happened.
- [26:56]
Will Creely
My estimation, Lindsey, seems to be the exact point. Right? That's the intention.
- [27:01]
Nico Perino
Let's go to Georgetown. Now. You had mentioned Ed Martin, the interim U.S. attorney for the District of Columbia. On Monday, February 17, he sent a letter to Georgetown University's Law Center Dean William Trenor, who we've had some dealings with in the past as well. Ed Martin demanded the elimination of all diversity, equity and inclusion programs from the law school curriculum. He wrote, georgetown Law continues to teach and promote dei. This is unacceptable. He then goes on to ask some questions. First, have you eliminated all DEI from your school and its curriculum? Second, if DEI is found in your courses or teaching in any, any way, will you move swiftly to remove it? Continues. At this time, you should know that no applicant for our fellows program that is at the U.S. attorney's office, our summer internship or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered. Essentially, they're not hiring anyone from these law schools that teach DEI Now, Georgetown responded. William Trenor, the dean and executive vice president, wrote, your letter challenges Georgetown's ability to define our mission as an educational institution. It inquires about Georgetown Law's curriculum and classroom teaching, asks whether DEI is part of the curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum, quote, unacceptable. The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it. This is a bedrock principle of constitutional law. He continues, recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed last week that it cannot restrict First Amendment rights and that it is statutorily prohibited from exercising control over the content of school curricula. Continues, given the First Amendment's protection of a university's freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the university's mission as a Jesuit and Catholic institution. So it's a private university. What does that mean? It can teach however it wants to teach, censor its students however they want. It wants to censor them, I guess.
- [29:12]
Will Creely
As long as it's upfront about it, you know, as long as the institution says, hey, student, when you show up here, these are our rules. And this is what you're agreeing to then? Yeah, we call that a warning school. Previously we called it an unranked school in our Spotlight database on student speech restrictions. Our whole idea since fire's inception is that students should know before they go. Some students might say, great, I would like to be someplace where, say, the Church of Latter Day Saints and that faith tradition is predominant. That's great. In the United States, you got your own First Men right to organize such an institution and students can go.
- [29:48]
Nico Perino
This would be the freedom of association.
- [29:50]
Will Creely
Absolutely.
- [29:51]
Nico Perino
Private institutions, public institutions are by, by the First Amendment. They can't do that sort of thing.
- [29:55]
Will Creely
Perfectly stated. That's exactly right. So what Traynor is doing here is saying, wait a second, back off. We will define DEI as we see fit. You are not alleging that we are out of compliance with any of our obligations as a recipient of federal funding? Thinking of our prior.
- [30:11]
Nico Perino
Under anti discrimination law.
- [30:12]
Will Creely
Under anti discrimination law. So really, we've got the First Men right to do what we want and buzz off.
- [30:18]
Nico Perino
So DEI has become kind of this catch all term. It can mean hiring practices that perhaps might be illegal and race based, sex based. But it could also be trainings, curriculum, teaching about systemic racism or some other things that people might independently have a problem with. But wouldn't on its own be illegal. Right.
- [30:39]
Will Creely
Our line on DEI and efforts to rein in DEI has been that if you are targeting trainings, if you are targeting university bureaucracy, if you're targeting those kinds of areas, then that is within your right. You can do that and you can say, you know what, we're just cutting it out. Once the government starts reaching its hand into the classroom and says, you cannot, quote, unquote, teach dei, whatever that may mean. And that's an illustration of the problem.
- [31:04]
Nico Perino
Is that it's something we're litigating in Florida right now.
- [31:06]
Will Creely
We're litigating in Florida, then we've got issues.
- [31:08]
Lindsey Rank
I just want to quickly. Caveat. Training's put on by the public institution.
- [31:13]
Will Creely
By the public institution.
- [31:13]
Lindsey Rank
Because we have seen institutions that have tried to overreach and say, okay, well now you student groups can't put on trainings for your student groups. And that is still suspect.
- [31:25]
Will Creely
Yeah, student groups can act independently. I guess the point here to recognize is that FIRE has identified some of the excesses of DEI campus. We've known that DEI bureaucrats have been behind some of the restrictions on speech that we've seen. We've got tons of examples at our website, probably tons of examples we've discussed right here. On this podcast. So we understand that impulse.
- [31:46]
Nico Perino
But when, I mean, they put together proceedings to fire Ilya Shapiro.
- [31:53]
Will Creely
There you go.
- [31:53]
Nico Perino
Under DEI justifications. We had him on this podcast a couple of episodes ago.
- [31:57]
Will Creely
But the response and how it's formulated matters. Having an acting U.S. attorney write a change your policies letter is a lot different from fire saying you better adhere to your promises of free speech.
- [32:10]
Nico Perino
And it's not even just change your policies. It change your curriculum.
- [32:12]
Will Creely
Change your curriculum. Right. You better don't let me find out there's any DEI teaching going on over there. I mean, I don't know what the hell that letter was.
- [32:20]
Lindsey Rank
Well, and it's also so vague. Like what is. Does that mean you can't mention any diversity subject in any class? Like in, you know, you can imagine situations in a law school where talking about some of these prevailing theories in, you know, legal scholarship is important for someone who's getting a legal education. So does that mean those theories can't be taught as theories even?
- [32:47]
Connor Fitzpatrick
I would love to hear someone try to justify how you can teach about Batson challenges and criminal procedure without mentioning things that relate to diversity.
- [32:57]
Nico Perino
What's a Batson challenge? You gotta help me out.
- [32:59]
Connor Fitzpatrick
A Batson challenge is when you are challenging someone being stricken from your jury pool on account of race. The classic example is you're in the south, you have an all white jury except for one African American in the box, and the state uses their last peremptory challenge to strike the them.
- [33:14]
Nico Perino
Gotcha.
- [33:14]
Will Creely
Or thinking about redistricting law or redlining law or any number of situations where discussions of race or gender or identity are crucial. I mean, that's part of our. The nut of our challenge in Novoa, which our challenge to Governor DeSantis is stop Wokac now before the 11th Circuit. Maybe by the time you hear this, we'll have an opinion out.
- [33:34]
Connor Fitzpatrick
Hope springs eternal.
- [33:36]
Will Creely
Yeah, but I mean, the point is.
- [33:37]
Nico Perino
Right, that depends what the opinion says. Yeah, right.
- [33:39]
Will Creely
Exactly.
- [33:40]
Lindsey Rank
Let's knock on wood.
- [33:41]
Will Creely
The bottom line here is that Ed Martin needs to find other ways to spend his time. I think he's wasting taxpayer dollars firing off know nothing letters to universities. Georgetown did the right thing by saying back off. None of that is to say that there aren't speech restrictive aspects of DEI bureaucracies that we've criticized for years. But reaching into the classroom to tell professors and faculty what they can and can't discuss with their students is a mistake and violates the First Amendment.
- [34:08]
Nico Perino
But Ed Martin justifies his outreach here by saying he's receiving letters of concern from people about Georgetown's practices. And he takes these requests seriously and acts on them with letters like this. Like what's? Just asking questions, right?
- [34:25]
Will Creely
Yeah.
- [34:27]
Lindsey Rank
I'm sure he receives letters on all kinds of things all the time that he ignores. So I don't know why this is the particular issue. I mean, I think we do know why, but. But it doesn't comport with, you know, our values as a free society that this is the one issue that he suddenly decides to take up and. And write to Georgetown.
- [34:47]
Will Creely
Tell me the residents of the District aren't sleeping better at night knowing that their U.S. attorney is on the case and getting at the problems that really matter. Right. What are they teaching in Georgetown?
- [34:57]
Lindsey Rank
Yeah.
- [34:58]
Will Creely
All right. Get a hobby.
- [34:59]
Nico Perino
Next story. Trump administration is going after some law firms. On Tuesday, March 11, the Wall Street Journal covered President Trump's executive orders and actions against big Washington law firms for federal punishment and investigation. These law firms at the time had included Covington and Burling, Perkins Coie, and most recently, it's gone after Paul Weiss. The executive action against Covington and Burling on February 25 suspended the security of firm employees who assisted former special counsel Jack Smith and orders all government agencies to review all government contracts with Covington and Burling. The executive order against Perkins Cooey, on the other hand, includes the orders of the administration will suspend any active security clearances again by individuals at Perkins Coie. It'll take appropriate steps to terminate any contracts that the federal government might have with Perkins Coie. It would limit official access from federal government buildings to employees of Perkins Coie. Query whether this includes federal courthouses. Right. And then it also advises agency officials to, by the extent permitted by law, refrain from hiring employees of Perkins Coie. Now, the executive order against Paul Weiss singled out attorneys that filed a lawsuit against individuals who protested at the Capitol on January 6th. The firm was involved in some of that litigation and for hiring an attorney who had investigated Trump while in government service. These were the complaints that the administration had against Paul Weiss. And similar to the Perkins Cooey and Burling and Covington executive orders, this executive order barred Paul Weiss employees from entering federal buildings and dealing with the government. And companies doing business with Paul Weiss could lose their government contracts. Who wants to respond to this?
- [36:52]
Connor Fitzpatrick
I'll take it.
- [36:53]
Nico Perino
Go ahead.
- [36:53]
Connor Fitzpatrick
One of the reasons that this one hit a little bit close to home for me is before I came to fire, I worked at a law firm for 10 years. And so I get certainly a lot of the pressures that these law firms are facing. And so there's a few major red flags here that I think folks should be aware of. The first is to remember that lawyers are officers of the court. We are not our clients. We represent our clients. Our duty to the court, and our duty to our client is to zealously advocate for our clients within the bounds of the law, and if necessary, to advocate for a good faith change in existing law. So, for example, occasionally we might argue a case should be overturned if we think it's untenable. But there are ethical rules that govern every single attorney in the United States that we have to adhere to. And one of the dangerous things that this executive order is doing is it's conflating the client with the attorney. That's the first problem. The second problem, and this is reflected in the Perkins Coie executive order. And one of the reasons I found it so chilling, is that it's trying to put essentially a scarlet letter on Perkins Coie. And what I'm thinking of there is the provision that says that anyone doing business with anyone that has a contract with the federal government that also does business with Perkins Coie has to disclose that. Here's why that's a problem. Perkins Coie is a large law firm. I'm sure it does a large amount of commercial litigation, which is what I used to do. Disputes between companies. Think of all of the different companies in the United States that have contracts with the federal government, from Lockheed Martin to Microsoft to the Pepsi machines that are at the Pentagon. Well, now, if Pepsi has retained Perkins Coie to represent it in a trademark dispute with Coca Cola, it's forcing Pepsi to disclose that they do business with Perkins Coie. So what it's trying to do is not just stop the federal government from contracting with Perkins Coie for legal work, which would be problematic in and of itself. It is trying to scare the entire public sector away from utilizing the services of a law firm strictly based on who they've represented. And that is chilling. And it's an affront to the idea of the American judicial system and the ethical obligations we all place on ourselves as officers of the court.
- [39:09]
Nico Perino
The tentacles of the federal government reach far, right? So to find clients who have no contract or no relationship with the federal government would be very hard. So the net effect might be that it just can't do business.
- [39:22]
Connor Fitzpatrick
Absolutely. I mean, think about everyone from the gravel company that supplies asphalt to the Department of Transportation to build highways, to Pepsi, who provides the Mountain Dew for the soda machine at the Pentagon or at Joint Base Andrews, I would wager a guess that the vast majority of Fortune 500 companies, if you do this, the six degrees of Kevin Bacon with the federal government, you will only need one or at most two degrees of connection to the federal government for some service that's being provided.
- [39:56]
Nico Perino
It's not even just that. I see in this NPR report from earlier in the month that there was at least one instance where a federal prosecutor refused to meet with Perkins Coie attorneys representing a client. So you can't even be a counterparty to the federal government, to say nothing of the restriction on potentially accessing federal government buildings, which would include federal courthouse. You just don't have access to the law anymore. Now, at least in Perkins Coie's case, they filed for a temporary restraining order and received it from Judge Beryl Howell. That case will continue to go through the courts. But Judge Howell said our justice system is based on the fundamental belief that justice works best when all parties have zealous advocates. That fundamental promise extends to all parties, even those with unpopular ideas or beliefs or causes disliked by President Trump. And she continues, the order casts a chilling harm of blizzard proportion across the entire legal profession that will be understood as an affront to intimidate attorneys and prevent them from advocating on behalf of clients and causes at odds with the president. So some of our listeners will might be wondering why we're talking about this on a First Amendment free speech podcast. What are the First Amendment free speech implications here?
- [41:10]
Will Creely
Well, the entire foundation of our work here is that we'll have the opportunity to vindicate rights in court, that we are adversarial system. That system of justice that Connor so sternly described and as the judge in the Perkins Coey case identified, depends on the ability to zealously advocate my favorite application of the word zealously for viewpoints and for clients who hold viewpoints that may be unpopular with the federal government. And I should note that the harm is already apparent. There's reporting in the Washington Post today about members of the Biden administration who are now having a hard time finding representation because firms won't take it. Firms are receiving the intended message here. As Lindsey described the chill. We're seeing the same playbook here. Once again, the administration is not trying to win these arguments in court. It's trying to flip over the whole damn table and make it impossible for folks to do business if they represent people who disagree with them. And that is fundamentally un American. The First Amendment harm would be that nobody who says anything the government doesn't like can get A lawyer, because the lawyer wouldn't be able to do business. And now you couple that with a bad Supreme Court ruling earlier this term, which makes it harder to get fees. If you're representing someone in a section 1983 action for violation of rights, you couple that with already the fact you can't get monetary damages from the federal government. Usually you couple that further with the fact that lawyers don't like representing some of these cases anyways, which is why we have section 1983. It just gets harder and harder. And again, what you're trying to do is shrink the information environment, shrink the range of viewpoints that can safely be expressed in public. If you want to make a living, if you want to have somebody to represent you if you say them, or if you want to stay in this country on all fronts, the through line is if the administration doesn't like what you have to say, look out, because they're coming for you in new and unprecedented ways, and they're flipping over legal tables to do it.
- [43:33]
Nico Perino
You could very easily see under a future Democratic administration targeting law firms that represented President Trump in his various legal matters. I mean, this is setting a precedent that you're going to weaponize the legal process or legal system to go after your political opponents. You represent an unpopular candidate who lost an election. Well, the candidate that won the election is now going to go after your representation.
- [43:56]
Connor Fitzpatrick
I think that's a great point. And to the sort of Republican leaning listeners, you have, I would say, imagine if the Biden administration did this to Jones Day. Jones Day is one of the largest law firms in the country. They're headquartered in Cleveland, though I don't hold that against them. They have a number of immensely capable attorneys. My former firm has worked with them before on the City of Detroit bankruptcy. And the idea that any administration, whether it's Democratic or Republican, could blacklist a law firm and all of that law firm's clients from federal government work because the administration doesn't like one of the lawsuits or clients that that firm took on is absolutely unfathomable. Our society just cannot work that way.
- [44:40]
Nico Perino
But what if a lawyer is bringing a frivolous lawsuit, for example? Is there a system by which they can be punished?
- [44:48]
Connor Fitzpatrick
There is. There is. So There is Rule 11 of the Federal Rules of Civil Procedure that provides for sanctions against both clients and parties who file something that is without legal basis. There is a separate statutory section in the US Code 1927 that allows for sanctions against attorneys who file vexatious papers. And they're, of course, the state bar that all attorneys have to answer to in case we engage in malpractice and fall below our ethical duties. So the idea that if not for this executive order, there would just be frivolous suits run amok in America's courts is just wrong.
- [45:24]
Will Creely
Actually, on that note, we had more input from the administration recently and the DOJ, instructing DOJ attorneys to file what essentially sounds like frivolous Rule 11 motions for sanctions as aggressively as possible. So again, further, to use a word I don't love, but I'll use again here, further weaponization of the existing process to make it exceedingly painful for attorneys to represent clients the government doesn't like. In other words, Rule 11 sanctions exist for filing frivolous motions. Right. Being basically an asshole in court. But now the DOJ is going to be filing as many Rule 11 motions as they can. So they're taking the idea of Rule 11 motions and they're in turn making their bad rule of emotions, possibly civic to another rule of motion, I mean.
- [46:14]
Connor Fitzpatrick
Which will then likely draw another rule of in motion from the doj.
- [46:18]
Lindsey Rank
Just a cycle.
- [46:19]
Will Creely
Yeah.
- [46:20]
Nico Perino
There is a tradition in America of representing unpopular causes, unpopular people, dating back to John Adams when he represented the bill British soldiers during the Boston Massacre. And Will, you were at fire when this happened, Lindsey. You might have been when Ronald Sullivan, who was the housemaster at Harvard, and they still called them masters. He was on. He's a Harvard law professor who represented Harvey Weinstein, very unpopular circa 2017 during the MeToo movement. And students didn't like that he was on. Harvey Weinstein's legal team protested against him. And he was also ultimately removed from his deanship, mastership, whatever that position was, because of his representation. And Fire cried foul when that happened as well. Everyone is entitled to an attorney and to vigorous and zealous representation. That's how you trust the legal system. That's how you trust the outcome of any of these processes when people are punished. Because you know that through zealous representation, you're going to have the best chance to arrive at truth and the just outcome. Now with the Paul Weiss matter, the Perkins Coie one is still winding its way through the courts. Paul Weiss capitulated.
- [47:29]
Will Creely
Yeah.
- [47:31]
Nico Perino
Trump put out on Truth Social, a very long post talking about how they eliminate some of their DEI practices, reform their hiring practices, and also donate $40 million in pro bono legal work to causes that the Trump administration cares about and Paul Weiss says it cares about as well. In another great New York Times report, they reported on some of the background discussions at Paul Weiss about how they were going to respond to this executive action, much in the way that the Wall Street Journal was reporting on how Columbia was trying to figure out how to respond to the executive action that was taking place there. We initially prepared to challenge the executive order in court, and a team of Paul Weiss attorneys prepared a lawsuit in the finest tradition of the firm. This is the partner. But it became clear that even if we were successful initially in joining the executive order in litigation, it would not solve the fundamental problem, which was that clients perceived our firm as being Persona non grata with the administration. The New York Times also reports that the firm's clients were deeply concerned that even if Paul Weiss won in court, it would still be labeled Persona non grata. The partner said that they would potentially prompt clients to move their business to rival firms and call center Paul Weiss to go under. There is this all staff email that Brad Karp, the aforementioned quoted partner, sent. And he said, we were hopeful that the legal industry would rally to our side, even though it had not done so in response to executive orders targeting other firms. We had tried to persuade other firms to come out in public support of Covington and Perkins Coie. And we waited for firms to support us in the wake of the president's executive order targeting Paul Weiss. Disappointingly far from support, we learned that certain other firms were seeking to exploit our vulnerabilities by aggressively soliciting our clients and recruiting our attorneys. It's kind of a sad state of affairs, isn't it?
- [49:23]
Will Creely
Yeah, it's ridiculous. It reminds me of the revolutionary era flag with the cut up snake. You know what I'm talking about? Join or die. I mean, it's the same story whether we're talking about private firms or universities. Some collective action is going to be necessary, a unified front. Otherwise it really will be separating off compromised actors from the herd, getting them to capitulate and moving on to the next target.
- [49:48]
Lindsey Rank
Well, and I'm worried the unified front is going to be the opposite direction. We want it to be right, the unified front. We want the unified front to be pushing back. But I'm really worried we're going to see the unified front being capitulation, anticipatory compliance. Right.
- [50:02]
Nico Perino
We've heard that phrase before.
- [50:04]
Will Creely
Yes.
- [50:04]
Nico Perino
What's that mean? You created such a chilling environment that the government doesn't need to target individuals. The individuals just know that they need to fall in line. Or they could be targeted.
- [50:13]
Will Creely
I'm not going to say the German word, but there is a German word for it. And Judge Mark Walker used it in an opinion striking down one of the DeSantis administration's rules about what faculty members could do and if they could join, amicus briefs, et cetera. And he had an exact phrase for it. And last time we were going to fire members chat, somebody had it. I think it was our colleague Emily Nyer had it ready, and I was very impressed. But it begins with a G. I'm not going to try it.
- [50:42]
Nico Perino
I'm sure it's a very scary sounding word. It sounds terrifying. Sounds very German.
- [50:46]
Connor Fitzpatrick
In fairness, most words sound scary in German.
- [50:49]
Lindsey Rank
Yeah. Yeah. Especially as someone with German grandparents. Yeah, it's terrifying.
- [50:55]
Will Creely
Yeah. These are challenging days, for damn sure. It's an interesting time. Leave it euphemistically at that.
- [51:02]
Nico Perino
Well, actually, let's not leave it there. Perkins Coombe is still fighting.
- [51:05]
Will Creely
Right, right, right.
- [51:06]
Nico Perino
And so where could that go? What could the outcome be? Might it prevent or forestall future orders like this? Or would it just apply to Perkins Coey? So a temporary restraining order means what, Connor?
- [51:17]
Connor Fitzpatrick
So a temporary restraining order usually comes in the flavor of what's called an ex parte restraining order, which is somebody goes to court, they tell the judge this horrible bad thing that's unlawful is about to happen, and we need you to enter an order right now to stop it. And what makes it ex parte about it is that you're asking the judge to grant it before the other side even has a chance to respond. Occasionally, there are contested temporary restraining orders that are on a very condensed brief schedule. But a temporary restraining order, as its name suggests, is temporary. It usually exists for only 14 days, sometimes less. And after that, it has to be converted into what's called a preliminary injunction. And so right now, at least as I understand it, there's a temporary restraining order that's in place blocking this executive order. But the problem is, and I think where Paul Weiss may have been going with some of their concerns is I think it gets much more murky as to the possibility of any new contracts. In other words, this could be enjoined. But it gets a lot more murky of is the court going to order the federal government to enter into new contracts where now they have a plausible basis for saying, well, four firms bid for the work. We're just going to decide to do the work with this other firm. So I think that's one of the things that's scaring off the Paul Weiss's of the world is, okay, let's say we can get a TRO or a preliminary injunction in joining the cancellation of existing contracts. Eventually those cases and those matters are going to end and the work is going to dry up. So we might win the war or we might win the battle, but we won't win the war.
- [52:52]
Nico Perino
So let me make sure I understand what you're saying. So the executive order says that the federal government can't enter into contracts with some of these law firms. And it's going to look askance at contractors that they use who do use one of these law firms. Very explicit in the order. But what you're saying is you could have a preliminary injunction against this order or could even be struck down as unconstitutional, but the government could just decide perhaps not to enter into contracts with these firms on the DL or on the DL, not hire any other contractors who work with these firms, in which case you don't have a smoking gun. And it's harder.
- [53:28]
Lindsey Rank
I don't even think it has to be on the DL. I mean, they could very outwardly say, we're not going to do these contracts. And that's still a harder case than looking back at the contracts that are already in place.
- [53:41]
Nico Perino
But it would be an easier First Amendment retaliation because you would know that. That they're being retaliated against because of their associations and representation, right?
- [53:49]
Connor Fitzpatrick
Yeah. So where it gets really complicated is let's say you have the best preliminary injunction wording you can imagine coming from the court that says you are enjoined from taking into consideration Perkins Coie's prior representation of these individuals when making decisions on who to contract for Legal services. Unless you have a really aggressive consent decree or some other type of order from the judge that's actually going to subject this to some sort of monitoring. Single source contracts are prevalent across the United States. It's not going to be hard to draw up an RFP for Legal Services that would manage to exclude Perkins Coie. I mean, the amount of oversight it would take to actually enforce it is not something I would look forward to now. I think it's the card that Perkins Coie has to play. And I'm sure they will do their darndest to get an aggressively worded preliminary injunction and permanent injunction. But even if they win, it is going to be a battle that's going to be fought over again and again and again every time they lose out on a contract.
- [54:57]
Nico Perino
On that optimistic note, let's move now to Maine, a state that's had its own run ins with the federal government, although we're not going to talk about that here. We're talking about an action taken by Maine's House of representatives on Tuesday, February 24, when it voted 75 to 70 to censure representative Laurel Libby for posting on her legislative Facebook pages photographs and personal details about a transgender high school athlete. The censure resolution cites her identifying the student athlete by name and intentionally leaving that student's face exposed as the reasons for barring her from speaking on the House floor or voting on any legislation until she capitulated, presumably apologized, and took the post down. Will First Amendment issue.
- [55:51]
Will Creely
Yeah, First Amendment issue. She's speaking on an issue of intense public debate. Trans athletes participation in sports other than their biological gender, and where that line should be drawn. It's an issue of intense national debate. For several years now, she's posting about it on her Facebook page. She hasn't violated any laws in so doing. The picture was from the competition.
- [56:24]
Nico Perino
Very public.
- [56:25]
Will Creely
Yeah. It's not some surreptitious picture or some kind of. Of picture that might open up toward.
- [56:32]
Nico Perino
Action because the student was a minor, perhaps.
- [56:36]
Will Creely
I'm thinking rights, First Amendment protected. And then to have the censure is one thing. If the censure just means, hey, we don't like what you did. But the issue here, where the First Amendment rubber really hits the road, is the restriction on Representative Libby's right to speak or to vote, that is, to represent her constituents as an elected official without apologizing for her protected speech. So she has now filed suit. We will be watching with interest.
- [57:09]
Nico Perino
The Supreme Court dealt with an issue kind of like this in recent years. Right. But it didn't actually involve a representative who was denied the right to vote.
- [57:18]
Will Creely
If I understand it correctly, that's the crucial distinction. It was just a verbal censure. And the court said that a verbal censure alone is not the kind of retaliation that would give rise to a First Amendment action by the censured member.
- [57:33]
Nico Perino
The resolution here from the State of Maine says pursuant to Article 4, Part 3, Section 4 of the Constitution of Maine, yada, yada, yada. It states that the House may punish its members for disorderly behavior. There's another section, subsection 1 of Mason's Manual of Legislative Procedure, which states that legislative body has the right to regulate the conduct of its members and may discipline a member as it deems appropriate, including reprimand, censure, or expulsion. The House is the judge of its own membership. So you have these rules, but they don't supersede the First Amendment.
- [58:06]
Will Creely
Yes. I think that, again, we've been Talking the theme of this recording thus far has been the use of, or the subversion of principles of fair play or the use of loopholes have been sitting around waiting to be exploited. It's easy to imagine, I think probably a little too easy to imagine a legislative body getting a super majority in one party or the other and then summarily expelling all the other ones for wrong think or just holding bad beliefs or opposing the true nature of the United States or whatever. Fill in your depressing bluster there. So you don't want legislators being disciplined and being effectively denied their right to participate as a member of an elected body for holding and voicing opinions that the majority doesn't like. I mean, one thing I was thinking about as we were discussing this case internally a couple of years ago in Tennessee, the state legislature, I think, expelled some members who had participated in protests either outside the body or inside the body. And, you know, the facts matter here, so I don't want to get too specific about it. But the point being is that here you've got a conservative member being denied the right to participate on account of reviews voiced lawfully outside of the body. There you know, you've got lawmakers who, as I recall, were expelled for a little while, kicked out, can't remember the details. It's just too easy to imagine the arms race of expulsion and censure leaving us with even less functional legislative bodies than we have now.
- [59:59]
Nico Perino
I was recently looking at a passage from Karl Popper's text.
- [60:05]
Will Creely
Just some light reading.
- [60:06]
Nico Perino
Light reading Open Society and its Enemies, which is like 900 pages long.
- [60:10]
Will Creely
I love you, Nico.
- [60:11]
Nico Perino
I'm surprised they were able to fit it into a paperback version, but they did.
- [60:14]
Lindsey Rank
Wow.
- [60:14]
Nico Perino
And Karl Popper engages in this thought experiment whereby he recognizes that most people will ask the question, who is the best to rule? Like who is the best ruler? In this case, who should be president? He said, maybe that's not the question to ask, but what system should we put in place so we can organize political institutions that bad or incompetent rulers can be prevented from doing too much damage? And I thought this is the perfect encapsulation of what it means to be a civil libertarian, where you're always looking at what is the worst case scenario and how do we prevent laws from being used in the worst possible way?
- [60:54]
Will Creely
That's right.
- [60:54]
Connor Fitzpatrick
It was also how the framers thought of the Constitution, separation of powers. It's why the Bill of Rights exists. The Bill of Rights is nothing but a list of no trespassing Signs for the government of. Here's what you, the all powerful government, are not allowed to do.
- [61:07]
Will Creely
Yeah.
- [61:08]
Nico Perino
So you have the Constitution, which is supreme. Right. And then underneath that you might have state laws, but those still speak to the Constitution, which is incorporated through the 14th Amendment to apply to the states. And then you might have municipal codes, and then you might have somewhere in there under this Russian nesting doll, the rules regulating conduct within a state house. Right. But to the extent you have all these other rules at the lower level, the Constitution still reigns.
- [61:34]
Will Creely
Yeah. It gets interesting. Right. Think about Congress as a co. Equal branch, you know, in the speech and debate clause. Right. And so there's, you know, but here Libby is again, state legislature. So just putting that aside for a second. Also putting aside the main constitution. We'll put that over here. But Libby is posting on a Facebook page about a matter of public concern and the speech is lawful. And even if the speech, you know, even if. If the student, who is identified by first name only, as I recall, even if the student had some kind of recourse, let's say the student was brought up, maybe it was a close call. Student brings some kind of tort action, some civil claim to deny somebody the ability to represent their constituents in the body itself for speech that happened outside of the body on an issue of public concern. It still makes me very nervous. I still think you've got a plain First Amendment problem there.
- [62:36]
Nico Perino
Well, she filed lawsuit. We'll see how it goes in the courts. We got through a lot. We did it in about an hour.
- [62:42]
Will Creely
There's more to come. I have to admit. I was checking the text messages. We got a new lawsuit from members of the Harvard American association of University Professors challenging the Secretary of State ideological deportation provision. They're calling their lawsuit, so maybe that's a coming attraction for a future show.
- [63:03]
Nico Perino
Ideological deportation statute.
- [63:05]
Will Creely
That's what they're calling it.
- [63:06]
Nico Perino
You need a good name for something if you want it to stick. Mike Godwin, who came up with Godwin's Law. I was just reading his book about the fight for free speech during the 1990s and emerging technologies, the Internet, a book called Cyber Rights. He said, you need a good meme, otherwise it's not going to stick.
- [63:20]
Will Creely
It's gotta be sticky.
- [63:21]
Nico Perino
It's got to be sticky. So ideological censorship.
- [63:24]
Will Creely
Ideological deportation.
- [63:26]
Nico Perino
Deportation. Okay. All right.
- [63:28]
Lindsey Rank
Guess we could have work to go do.
- [63:30]
Nico Perino
Well, I guess take a look at that lawsuit. Maybe we'll cover it on a future podcast. Will's over here looking at his phone while we're we're enraptured. Yeah.
- [63:38]
Will Creely
Anyway.
- [63:39]
Nico Perino
All right, folks, that's Will Creely, Connor Fitzpatrick, and Lindsey Rank. Thank you, folks, for joining the show. I am Nico Perino, and this podcast is recorded and edited by a rotating roster of our Fire colleagues, including Sam Lee, Aaron Reese, and Chris Malpe. The podcast is produced by Sam Lee. 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 follow us on X by searching for the handle Free Speech Talk. Feedback can be sent to sotospeakatthefire.org again, sotospeakatthefire.org and if you enjoyed this episode, please leave us a review on Apple Podcasts or Spotify. Those reviews help us attract new listeners to the show, and until next time, thanks again for listening.