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