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

Nico Perrino: All right, 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’re 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 Lindsie Rank, she’s our Director of Campus Rights Advocacy at ��֭����, reminded me yesterday that this is your second time on the show?

Lindsie Rank: This is my second time on the show.

Nico Perrino: All right, well welcome back.

Lindsie Rank: Thanks.

Nico Perrino: First time in the studio though?

Lindsie Rank: First time in the studio.

Nico Perrino: Very good.

Lindsie Rank: Yeah.

Nico Perrino: And to my left is Conor Fitzpatrick, Supervising Senior Attorney at ��֭����. Conor, first time on the show?

Conor Fitzpatrick: First time on the show. They’re letting the line litigators outta their cages.

Nico Perrino: Much to my chagrin. And across from me is repeat guest, Will Creeley, Legal Director at ��֭����. Will, welcome back.

Will Creeley: Can I get friend of the show status? Is that, can we?

Nico Perrino: Yeah, yeah.

Will Creeley: All right.

Nico Perrino: You’re a friend of the show.

Will Creeley: I think it’s been probably four or five times; you should be friend of the show.

Nico Perrino: You appear 15 times, you get a watch.

Lindsie Rank: Wow.

Nico Perrino: Taking my son to Disney World next month, first time ever. I’ll get you a Mickey Mouse watch.

Lindsie Rank: Ooh.

Will Creeley: It gets better and better.

Nico Perrino: All right. Pivoting from our morning rapid response meeting where we spent, what? 30, 35 minutes talking about the situation at Columbia?

Lindsie Rank: Yeah.

Nico Perrino: Figure, we should talk about it with all of our listeners now. For those who aren’t up to speed, on Friday, March 7th, the Department of Justice, along with the Departments of Health and Human Services and Education Department, as well as the General Services Administration. You 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 13th, 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 and wrote, I think it was a four or five-page letter of all the things that they were gonna do. Some of which might be good ideas. Some of which we have problems with. Lindsie, what’s your takeaway?

Lindsie Rank: I mean, my biggest takeaway is that we’re seeing an unprecedented amount of pressure on institutions at this moment and I’m really concerned about some of the policies that Columbia, especially the antisemitism 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 protestors have certainly been at the brunt of that. And I’m really concerned about seeing this definition of antisemitism be used to further censor this discussion on campus.

Nico Perrino: So, let me read the definition here so we know what we’re talking about. Their definition of antisemitism is, “Antisemitism is prejudice, discrimination, hate or violence directed at Jews, including Jewish Israelis. Antisemitism can manifest in a range of ways including as ethnic slurs, epithets and caricatures, stereotypes, antisemitic 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.

Lindsie Rank: Yeah.

Will Creeley: 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 what the finger shake was precipitated by.

Nico Perrino: Double standards applied to Israel.

Will Creeley: Double standards applied to Israel. As we’ve 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 the specific requirements. Just to set aside how high the alphabet soup of government agencies told Columbia to jump. I just want to talk about the process by which all of this happened, 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. It would be a shame if something were to happen to it.”

This is not following the typical procedures, in fact the statutorily prescribed 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, FIREhad 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 antisemitism is expansive, that it reached core protected speech.

Nico Perrino: But the definitions in those cases were at least promulgated as the result of an investigation and as a resolution.

Will Creeley: That’s right.

Nico Perrino: 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.

Will Creeley: That’s a great point.

Nico Perrino: 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.”

Will Creeley: That’s exactly right and that’s the problem. No matter what one thinks of the policy results, and I’ve got a lot of problems with them.

Lindsie Rank: Yeah.

Will Creeley: This is the poison fruit of the poison tree, which is the abandonment of any process here.

Lindsie Rank: Just the growth of the poison soil, right?

Will Creeley: That’s right.

Lindsie Rank: Yeah.

Will Creeley: I will say though, one quick note, even on that blueprint, that also I think was closer to a governmental bullying, if you will than the process that the legal scholars so ably described in their letter and our own Tyler Cower described on our blog. What’s supposed to happen is there’s supposed to be notice. The university’s supposed to have an opportunity to respond, there’s supposed to be a congressional intent to defund, blah-blah-blah.

Nico Perrino: So, there needs to be an administrative hearing, or the DOG files a lawsuit, right?

Will Creeley: Thank you, there you go, thank you.

Nico Perrino: And that didn’t happen in either of these cases.

Will Creeley: It didn’t happen.

Nico Perrino: They just yanked the funding.

Will Creeley: Exactly.

Lindsie Rank: Right. There just needs to be due process.

Nico Perrino: Right.

Lindsie Rank: I mean, we say this in the campus disciplinary setting all the time. It’s really not different here. I mean, the reality is that any time the punishment is promulgated by the government without due process, that punishment is suspect.

Will Creeley: It is. And it again, it allows for arbitrary enforcement of expansive definitions of anti-discrimination concepts.

Lindsie Rank: Right.

Will Creeley: It really just, at the end of the day, comport to what the administration doesn’t like. Anyway…

Nico Perrino: So, I’m reading here the Wall Street Journal’s exclusive report that it was gonna 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.”

Will Creeley: Right. I mean, let’s be clear, Columbia does not have clean hands, right?

Lindsie Rank: Right.

Will Creeley: Columbia allowed activities on campus that I do think constitute violation of federal anti-discrimination law. That’s the truth. And so, Columbia 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 the administration is isolating institutions, whether that’s ABC, Columbia, Perkins Coie and putting a lotta pressure to bear on them.

And essentially saying, “You’re gonna play ball with us or we’re gonna box you out and we’re gonna seriously threaten your existence.” And that separate from the herd, the attack mentality is gonna lead to further cave-ins and ultimately threaten our ability to speak out in ways that are decent from the federal government’s preferred line.

Nico Perrino: Yeah, Conor, 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 process prior to that by which Columbia could defend itself?

Conor 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?”

Nico Perrino: Alleged criminals.

Conor Fitzpatrick: 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 ballgame when it comes to having an ordered, civilized society.

And then the second point, just jumping off to what Will is saying about the danger of using these funding levers as ways to cajole universities and other universities to doing what you want, I would invite anyone, regardless of where they are on the political spectrum, to imagine what their view would’ve 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.”

Nico Perrino: 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.”

Will Creeley: Yeah.

Lindsie Rank: Yeah.

Nico Perrino: What’s the problem with that?

Will Creeley: Hey, these boots feel pretty nice. I actually like stomping around in these. Great. Before I didn’t want anybody wearing the boots, but now that I’m wearing them, I get it. Yeah, it sucks. This is the constant plight of the civil libertarian, right? We have to say, “But wait a second, think about it.”

Nico Perrino: It’s not good politics though.

Will Creeley: No, think about that turnkey authoritarianism that you’re allowing for. Think about, as Conor put it, the weapons you’re uncorking, the Pandora’s Box you’re opening. No, it’s hard to get that on a bumper sticker maybe but dammit, that’s our job, right?

Lindsie 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, it’s hard to keep to those principals like due process.

Nico Perrino: 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.

Lindsie Rank: Oh, yeah.

Nico Perrino: It’s either four years or maybe just two years because the congressional seats will flip in the midterms, I don’t know.

Will Creeley: They’ve been incessant about that.

Nico Perrino: It’s, 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.

Conor Fitzpatrick: That’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.

Nico Perrino: In our statement about the Columbia changes, we wrote, “Any changes made as a result of this flawed process are inherently suspect. If Columbia, with its immense resources and influence can’t stand up to government demands that threaten free speech, what’re 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 taskforce,” that is the administration’s Taskforce on Combatting Antisemitism, “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’re being investigated by the taskforce should expect the same level of scrutiny and swiftness of action if they don’t act to protect their students and stop antisemitic behavior on campus.” Gonna keep going.

Will Creeley: Yeah.

Nico Perrino: Is more or less what they’re signaling, right?

Will Creeley: Can I get to an interesting point that Conor raised a second ago? Conor 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 and universities should be outside of the federal government spending and maybe that’s the surest way to bulletproof your right to teach as you want or to allow speech –

Nico Perrino: That’s what Hillsdale does.

Will Creeley: I was just getting to Hillsdale, right? So, I can think of folks who are listening to this podcast and saying, “Wait a second, ��֭����. What about Hillsdale, what about other schools that don’t accept federal funding?” And I think the important thing to remember there, right? It’s 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’s forever enthralled to the political demands of whoever’s in office at the time.

That’s no way to run a lemonade stand or a university, right? 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 wanna be clear about the fact that just because you accept federal funding does not mean the federal government can run rough shot over you, nor should it.

Nico Perrino: So, it can’t condition its funding on giving up your constitutional right, so to speak.

Lindsie Rank: Right.

Nico Perrino: This is the Unconstitutional Conditions Doctrine; my understanding is that doctrine can be a bit of a mess.

Will Creeley: 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 the legal scholars point out in their letter, those 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 K-12 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.

Nico Perrino: Well, you don’t get Medicare if you keep talking.

Will Creeley: Right.

Lindsie 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 gonna 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? 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.

Will Creeley: Or if you’re a school and saying, “Wait a second, you’re changing up the terms of the contract.”

Lindsie Rank: Right.

Will Creeley: It’s like when you sign up for a cable TV company and then all of a sudden after your introductory deal is done, everything spikes up. But Columbia might be asking, “What the hell? We signed up under these terms.”

Lindsie Rank: Right.

Will Creeley: And even as our own Tyler Cower pointed out, there’s some discretion there for the government wielding it in this unprecedented way to achieve a certain political result is ugly, it's a dirty pool.

Lindsie Rank: Yeah.

Nico Perrino: Let’s move to our next story now, revising the Mahmoud Khalil Case, which we discussed on our last podcast. So, I’m just gonna 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 the spokesperson for some of the protestors. He’s not alleged to have engaged in any actual illegal activity. But he was a spokesperson, highly visible, and 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, “Presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States.” FIREraised alarm bells because, 1.) This provision, as you wrote in our amicus brief, Conor, is a loophole with infinite diameter. I love that phrase.

Will Creeley: Such a good line.

Nico Perrino: Such a good line.

Conor Fitzpatrick: Thank you.

Nico Perrino: 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/or 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, antisemitic, anti-American activity and the Trump Administration will not tolerate it.”

Karoline Leavitt, the Press Secretary held up flyers that 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 wanna cover with you all now, the government is trying to now provide more post-doc, you might argue, justifications for his deportation.

The New York Times reports that the government quietly added new accusations to its case against Mr. Khalil, 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 reduce the importance of concerns about Mr. Khalil’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.” Mahmoud Khalil got his green card in November, if I’m not mistaken. Conor, what’s your response for that?

Conor 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 Whitehouse focused solely on Mr. Khalil’s protected speech. Focused solely on the posters and the flyers he handed out. Focused solely on the chats 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 Whitehouse, 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.

Nico Perrino: 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.

Conor Fitzpatrick: In my view, he should. And this is something that gets into a bit more murky area when it comes to immigration law, and I don’t wanna outkick my coverage. But I’ll give you an analogy. So, imagine we do have a new acting DC US 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 District of Columbia but jaywalking here is quite common. It’s far more common to see someone, well 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 DC 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’m sure 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 DC.

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 iota.

Nico Perrino: But Will, in order for 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 determine whether he should have received his green card in the first place, right?

Will Creeley: That’s right, Nico. I pulled it up here because I figured you were going in that direction and I’m glad. Let’s go straight to the regulations here. The term willfully is interpreted to be 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 gotta 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 Conor’s point and his excellent jaywalking example, which I imagine you chose advisably.

Conor Fitzpatrick: I only ever follow the traffic laws. I was talking about a hypothetical person that might not always use the crosswalks.

Will Creeley: That’s right, that’s right. But I’d also be curious as to whether these omissions are routine grounds.

Lindsie Rank: Right.

Will Creeley: I mean, this is beyond, thinking about outkicking your coverage, this is beyond my knowledge. I’m just a humble First Amendment lawyer. I don’t know these intricacies.

Nico Perrino: You’re Atticus Finch.

Will Creeley: Right.

Nico Perrino: You’re ��֭����’s Atticus Finch.

Will Creeley: 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 or disclose your entire employment history or your membership in student organizations, if that is routinely cause for people to get bounced a year and a half later, after a whole lot of hullabaloo about your protected speech. So, I’d wanna weigh those in here. Just simply saying, “Oh, 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 listeners.

Nico Perrino: I also wanna know when he submitted his green card application.

Will Creeley: Yeah, all that stuff.

Lindsie Rank: Yeah.

Nico Perrino: Right? I think the New York Times article suggested it might’ve 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 generally takes a year and a half or more to get your green card. 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 forget the full name, but that was started after October 7th, 2023. So, theoretically, he could’ve submitted his green card before that group even existed. But I don’t know. And this is why you have due process, right?

Will Creeley: That’s right.

Lindsie Rank: Right, exactly, exactly.

Nico Perrino: This is why you have a hearing, so you can get to the bottom of these facts.

Will Creeley: So, one last point I’d like to make here is, regardless to some real extent of the individual facts of Khalil’s application.

Lindsie Rank: Yes.

Will Creeley: Setting all that aside.

Lindsie Rank: Yes.

Will Creeley: What Conor so skillfully highlighted in the brief that he sacrificed 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 provision, 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 and they’re gonna kick them out. And really, again, just back to Conor’s cold shower of reality, we’re talking about a provision that says that somebody presents serious grounds for deportation because contrary to our foreign policy interests, we’re talking about a grad student.

Lindsie Rank: Yeah. 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 the same across the board, which is, “If you are a dissenter, you better watch out.”

Nico Perrino: And this is what we call in First Amendment circles, the chilling effect.

Lindsie Rank: Right, exactly.

Nico Perrino: Right? 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.

Lindsie Rank: Right, and the chill’s already happened. So, even if they go back and say, “Oh, but look at all these bad things Columbia has done. Look at all these bad things Khalil has done.” I mean, even if they can prove all that, the chill’s already happened.

Nico Perrino: Yeah.

Conor Fitzpatrick: Which in my estimation, Lindsie, seems to be the exact point, right?

Lindsie Rank: Right. Right.

Conor Fitzpatrick: That’s the intention. Watch what you say.

Nico Perrino: Let’s go to Georgetown now. You had mentioned Ed Martin, the interim US Attorney for the District of Columbia. On Monday, February 17th, he sent a letter to Georgetown University’s Law Center Dean, William Trenner, 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 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 US Attorney’s Office, “Our summer internship or employment in our office who is a student or affiliated with the law school or university that continues to teach and utilize DEI will be considered.” I butchered that but essentially, they’re not hiring anyone from these law schools that teach DEI. Now, Georgetown responded. William Treanor, 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.

As to whether DEI is part of the curriculum and asserts that your office will not hire individuals from schools where you find the curriculum 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 it wants to censor them, I guess?

Will Creeley: As long as it’s upfront about it. 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 students in terms of restrictions. Our whole idea since ��֭����’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 have your own First Amendment right to organize such an institution and students can go.

Nico Perrino: This would be the freedom of association?

Lindsie Rank: Right.

Will Creeley: Absolutely.

Nico Perrino: And private institutions.

Will Creeley: Yeah, yeah.

Nico Perrino: Public institutions are bound by the First Amendment; they can’t do that sort of thing.

Will Creeley: Perfectly stated.

Nico Perrino: Yeah.

Will Creeley: That’s exactly right. So, what Treanor 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.”

Nico Perrino: Under anti-discrimination law.

Will Creeley: Under anti-discrimination law. “So, really, we’ve got the First Amendment right to do what we want and buzz off.”

Nico Perrino: So, DEI has become this catch-all term. It can mean hiring practices that perhaps might be illegal and race-based, sex-based. But it could also be training, 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.

Will Creeley: Right, our line on DEI and efforts to reign in DEI has been that if you are targeting training, if you are targeting university bureaucracy, if you’re targeting those areas, then that is within your right. you can do that, and you can say, “We’re just cutting it out.” Once the government starts reaching its hand into the classroom and says you cannot, “Teach DEI,” whatever that may mean and that’s an illustration of the problem is that it’s [inaudible - crosstalk] [00:31:07] –

Nico Perrino: Something we’re litigating in Florida right now.

Lindsie Rank: Right.

Will Creeley: We’re litigating in Florida. Then we’ve got issues.

Lindsie Rank: I just wanna quickly caveat.

Will Creeley: Yeah.

Lindsie Rank: Training put on by the public institution.

Will Creeley: By the public institutions.

Lindsie Rank: Because we have seen institutions that have tried to overreach and say, “Okay, well now you student groups can’t put on training for your student groups.

Will Creeley: That’s right.

Lindsie Rank: And that is still suspect.

Will Creeley: Yeah, that’s right. Yeah, student groups can act independently. I guess the point here to recognize is that FIREhas identified some of the excesses of DEI on 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 on our website. Probably tons of examples you’ve discussed right here on this podcast. So, we understand that impulse. But when –

Nico Perrino: I mean, when they put together proceedings to fire Ilya Shapiro under the DEI justification.

Will Creeley: There you go. That’s right.

Lindsie Rank: Right.

Nico Perrino: We had him on this podcast a couple of episodes ago.

Will Creeley: But the response and how it’s formulated matters. Having an acting US Attorney write a, change your policies letter is a lot different from FIREsaying, “You better adhere to your promises of free speech.”

Nico Perrino: And it’s not even just changing your policies, it’s changing your curriculum.

Lindsie Rank: Right.

Will Creeley: Change your curriculum, right?

Nico Perrino: Yeah.

Will Creeley: “Don’t let me find out there’s any DEI teaching going on over there.” I don’t know what the hell that letter was.

Lindsie Rank: But it’s also so vague. Does that mean you can't mention any diversity subject in any class? And you can imagine situations in a law school where talking about some of these prevailing theories in legal scholarship is important for someone who’s getting a legal education.

Will Creeley: Oh, absolutely correct.

Lindsie Rank: So, does that mean those theories can’t be taught as theories even?

Conor Fitzpatrick: I would love to hear someone try to justify how you can teach about Batson Challenges in criminal procedure.

Lindsie Rank: Right.

Conor Fitzpatrick: Without mentioning things that relate to diversity.

Nico Perrino: What’s a Batson Challenge, you gotta help me.

Conor 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 them.

Nico Perrino: Gotcha.

Will Creeley: Or thinking about redistricting law or redlining law or any number of situations.

Lindsie Rank: Right.

Will Creeley: Where discussions are raised over gender or identity are crucial. I mean, that’s part of the nut of our challenge in NAVOA, which is our challenge to Governor DeSantis’s Stop Woke Act, now before the 11th Circuit. Maybe by the time you hear this, we’ll have an opinion out.

Nico Perrino: Hope springs eternal.

Will Creeley: Yeah, but I mean the point is that –

Nico Perrino: Depends what the opinion says.

Lindsie Rank: Right, exactly. Let’s knock on wood.

Will Creeley: 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.

Nico Perrino: 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. Just asking questions, right?

Will Creeley: Yeah. Yeah. I don’t know.

Lindsie 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 it doesn’t comport with our values as a free society, that this is the one issue that he suddenly decides to take up and write to Georgetown about.

Will Creeley: Don’t tell me the residents of the district aren’t sleeping better at night knowing that their US Attorney is on the case and hitting at the problems that really matter?

Lindsie Rank: Right. Right.

Will Creeley: What’re they teaching at Georgetown?

Lindsie Rank: Yeah.

Nico Perrino: All right.

Will Creeley: Get a hobby.

Nico Perrino: Next story. The Trump Administration’s going after some law firms. On Tuesday, March 11th, 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 25th suspended the security of firm employees who assisted former Special Counsel Jack Smith and ordered all government agencies to review all government contracts with Covington and Burling.

The executive order against Perkins Coie on the other hand includes the orders of the administration to 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 capital 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 Coie and Burling Covington executive orders, this executive order barred Paul Weiss employees from entering federal buildings and dealing with the government. And companies doing business with Pual Weiss could lose their government contracts. Who wants to respond to this?

Conor Fitzpatrick: I’ll take it.

Nico Perrino: Go ahead.

Conor Fitzpatrick: And one of the reasons that this one hit a little bit close to home for me is, before I came to ��֭����, I worked at a law firm for 10 years. And so, I certainly get 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’re 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 the 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.

Nico Perrino: 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.

Conor 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 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.

Nico Perrino: But it’s not even just that. I see in this NPR report from earlier in the month that at least one, 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 courthouses. 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 proportions 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?

Will Creeley: Well, the entire foundation of our work here is that we’ll have the opportunity to vindicate rights in court. That we are an adversarial system, a system of justice that Conor so sternly described, and as the judge in the Perkins Coie case identified, depends on the ability to zealously advocate, my favorite application of the word zealously. But for our 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 Lindsie 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.

Lindsie Rank: Right.

Will Creeley: Because their lawyer wouldn’t be able to do business. And now you couple that with a bad supreme court ruling early 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 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 wanna make a living, if you wanna have somebody to represent you, you say them. Or if you wanna 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 are flipping over legal tables to do it.

Nico Perrino: Yeah. You could very easily see under a future Democratic administration, targeting law firms that represented President Trump in his various legal matters.

Will Creeley: Oh, sure.

Lindsie Rank: A hundred percent.

Nico Perrino: I mean, this is setting a precedent that you’re gonna 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 gonna go after your representation.

Conor Fitzpatrick: I think that’s a great point and to the Republican-leaning listeners you have, I would say, imagine if the Biden Administration did this to Jones Day.

Lindsie Rank: Right.

Conor Fitzpatrick: 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 in 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.

Nico Perrino: But what if a lawyer is bringing in a frivolous lawsuit? For example, is there a system by which they can be punished?

Conor 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 there are 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 on America’s courts is just wrong.

Will Creeley: 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, 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 gonna 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 11 motions possibly subject to another Rule 11 motion.

Conor Fitzpatrick: Which will then likely draw another Rule 11 motion from the DOJ.

Lindsie Rank: Right, it’ll be just a cycle.

Will Creeley: Yeah.

Nico Perrino: There is a tradition in America of representing unpopular causes, unpopular people dating back to John Adams when he represented the British soldiers during the Boston Massacre.

Will Creeley: Damn right.

Nico Perrino: And Will, you were at Fire when this happened. Lindsie, you might’ve been. When Ronald Sullivan.

Will Creeley: Yeah.

Nico Perrino: Who was the House Master at Harvard, when they still called them masters. He’s a Harvard law professor who represented Harvey Weinstein. Very unpopular, circa 2017 during the MeToo Movement. And students who 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 FIREcried foul when that happened as well.

Lindsie Rank: Right.

Nico Perrino: 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 gonna 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.

Will Creeley: Yeah.

Nico Perrino: Trump put out on Truth Social, a very long post talking about how they eliminated some of their DEI practices, reformed their hiring practices. And also, donate $40 million in pro bono legal work to the 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 gonna 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 in initially enjoining 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 prow pliant clients to move their business to rival firms and called 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.” A sad state of affairs, isn’t it?

Lindsie Rank: Yeah.

Will Creeley: It’s ridiculous. Reminds me of the revolutionary-era flag with the cut-up snake, you know what I’m talking about.

Nico Perrino: Yeah.

Will Creeley: Join or die. I mean, it’s the same story whether we’re talking about private firms or universities. Some collective action is gonna be necessary, a unified front, otherwise it really will be separating off compromised actors from the herd. Getting them to capitulate and move on to the next target.

Lindsie Rank: Well, and I’m worried the unified front is gonna 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 gonna see the unified front being “capitulation.”

Will Creeley: Anticipatory compliance.

Lindsie Rank: Right.

Nico Perrino: We’ve heard that phrase before.

Will Creeley: Yes.

Nico Perrino: What’s that mean? You create 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.

Lindsie Rank: Right.

Conor Fitzpatrick: We’re not gonna 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 and etcetera. And he had an exact phrase for it and last time we were at a FIREmembers’ chat, somebody had it, I think it was a colleague, Emily Nier had it ready and I was very impressed. But it begins with a G, I’m not gonna try.

Nico Perrino: I’m sure it’s a very scary sounding word.

Conor Fitzpatrick: It sounds very terrifying.

Nico Perrino: It sounds very German.

Will Creeley: In fairness, most words sound scary in German.

Lindsie Rank: Yeah, yeah. As someone with German grandparents, yeah, it’s terrifying.

Conor Fitzpatrick: Yeah, these are challenging days, for damn sure. It’s an interesting time, we’ll leave it euphemistically at that, I guess.

Nico Perrino: Well, actually, let’s not leave it there. Perkins Coie is still fighting, right?

Conor Fitzpatrick: Right, right.

Nico Perrino: 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 Coie? So, a temporary restraining order means what, Conor?

Conor Fitzpatrick: So, a temporary restraining order is, 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’re 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, has to be converted into what’s called a preliminary injunction.

Nico Perrino: Okay.

Conor Fitzpatrick: And so, right now, at least as I understand it, there is 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 murkier 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, enjoining the cancellation of existing contracts. Eventually, those cases on 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.

Nico Perrino: So, let me make sure I understand what you’re saying. So, the executive order says that the federal government can enter into contracts with some of these law firms and it’s gonna 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 it 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 hard to prove.

Lindsie Rank: I don’t even think it has to be on the DL. I mean, they could very outwardly say, “We’re not gonna do these contracts,” and that’s still a harder case than looking back at the contracts that’re already in place.

Nico Perrino: But it would be an easier First Amendment retaliation case.

Lindsie Rank: Oh, sure.

Nico Perrino: Because we would know that they’re being retaliated against because of their associations and representation of other clients.

Lindsie Rank: Sure, right.

Conor Fitzpatrick: Right. 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 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, it would, 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 is going to be fought over again and again and again every time they lose out on a contract.

Nico Perrino: Well, 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 gonna talk about that here. We’re talking about an action taken by Maine’s House of Representatives on Tuesday, February 24th when it voted 75 to 70 to censure Representative Laura Libby for posting on her legislative Facebook pages, photographs and personal details about a transgender high school athlete.

This is an athlete who transitioned, and Laura Libby posted a photo before and after of this individual showing her face. And she was standing on a podium, both in the male competition and the female competition in different years, in the Pole Vault State Championship.

Will Creeley: Yeah.

Nico Perrino: Making an argument against transgender athletes participating in sports of their new gender. 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?

Will Creeley: 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 been 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 doing so. The picture was from the competition.

Nico Perrino: A very public event.

Will Creeley: Public, yeah.

Lindsie Rank: Right.

Will Creeley: It’s not some surreptitious picture or some picture that might open up toward action.

Nico Perrino: Because the student was a minor, perhaps?

Will Creeley: Right. I’m thinking, you can imagine certain pictures that would cross that threshold, but this is not one of them. Publicly reported. Yeah, yeah, yeah. So, yeah. No, it’s 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.

Nico Perrino: The Supreme Court dealt with an issue like this in recent years, right? But it didn’t actually involve a representative who was denied the right to vote, if I understand it correctly.

Will Creeley: And that’s the crucial distinction. It was just a verbal censure, and the court said that a verbal censure alone is not the retaliation that would give rise to a First Amendment action by the censured member.

Nico Perrino: The resolution here from the State of Maine says, pursuant to Article 4, Part 3rd, 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 a 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 to the Constitution?

Will Creeley: 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 that’ve 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, one party or the other and then summarily expelling all of 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 the facts matter here, so I don’t wanna 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 her views voiced lawfully outside of the body.

There, you’ve got lawmakers who as I recall were expelled for a little while, I 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.

Nico Perrino: I was recently looking at a passage from Karl Popper’s text.

Will Creeley: Just some light reading.

Nico Perrino: Light reading, Open Society and its Enemies, which is 900-pages long.

Lindsie Rank: Oh, my gosh.

Will Creeley: That’s why I love you, Nico.

Nico Perrino: I’m surprised they were able to fit it into a paperback version, but they did.

Lindsie Rank: Wow.

Nico Perrino: And Karl Popper engages in this thought experiment whereby he recognizes that most people will ask the question, “Who is the best to rule? Who is the best ruler?” In this case, who should be president? He said, “Maybe that’s not the question to ask, but what systems should be put in place so we can organize political institutions so 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.

Lindsie Rank: Professional pessimist. Yeah.

Will Creeley: That’s right. It was also how the framers thought of the Constitution.

Lindsie Rank: Right, right.

Nico Perrino: Separation of powers.

Will Creeley: 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.

Nico Perrino: Yeah. 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 statehouse, right? But to the extent you have all these other rules at the lower level, the Constitution still reigns supreme.

Conor Fitzpatrick: Yeah, it gets interesting right, to think about Congress is the co-equal branch in the Speech and Debate Clause, right? And so, but here Libby is again, state legislature, so just putting that aside for a second. Also putting aside the Maine 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, even if the student who was identified by first name only, as I recall.

Even if the student had some recourse, let’s say the student was brought up, maybe it was a close call, the student brings some torrid action, some civil claim. You still, 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.

Nico Perrino: Well, she filed a lawsuit. We’ll see how it goes in the courts. We got through a lot. We did it in about an hour.

Will Creeley: There’s more to come. I have to admit, I was checking the text messages. We've 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.

Nico Perrino: Oh, wow. Ideological Deportation Statute.

Will Creeley: That’s what they’re calling it.

Nico Perrino: 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 technology, the internet but called cyber rights. He said, “You need a good meme, otherwise it’s not gonna stick.”

Will Creeley: Gotta be sticky.

Lindsie Rank: Yeah. Yeah.

Nico Perrino: So, Ideological Censorship Provision?

Will Creeley: Ideological Deportation.

Nico Perrino: Deportation provision. Okay. All right.

Lindsie Rank: I guess we have work to do now.

Nico Perrino: 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.

Will Creeley: I’m sorry.

Nico Perrino: While we’re enraptured, yeah, anyway. All right, folks. That’s Will Creeley, Conor Fitzpatrick and Lindsie Rank. Thank you, folks, for joining the show. I’m Nico Perrino and this podcast is recorded and edited by a rotating roster of our FIREcolleagues, including Sam Li, Aaron Reese and Chris Maltby. The podcast is produced by Sam Li. To learn more about So to Speak, you can subscribe to our YouTube channel, our Substack page, both of which feature video versions of this conversation. You can follow us on X by searching for the handle FreeSpeechTalk. Feedback can be sent to So to Speak at The��֭����.org. Again, So to Speak at thefire.org.

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