The post Today in Supreme Court History: September 24, 1755 appeared first on Reason Magazine.

On the afternoon of September 18, 2026, President Trump announced in a social media post that, "effective immediately," he was "banning" the news organizations CNN, MS NOW, and POLITICO "from the White House." And those news organizations allege that over the weekend their reporters were denied access to the White House and had their "hard pass" press credentials deactivated. Plaintiffs—the three news organizations and three individual reporters—sue the President and several White House officials and move for a temporary restraining order, asking the Court to order the immediate reinstatement of their hard passes pending further proceedings. The Court's resolution of their Motion is dictated by the application of well-known D.C. Circuit precedent that this Court must faithfully apply. For the reasons explained below, the Court will grant the Motion….

Plaintiffs have shown a likelihood of success, at least on their Fifth Amendment procedural due process claim. The merits of this claim are assessed in two steps: "the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Plaintiffs have shown they are likely to succeed at both steps.

As for the first, the D.C. Circuit held in Sherrill v. Knight (D.C. Cir. 1977) that "the interest of a bona fide Washington correspondent in obtaining a White House press pass … undoubtedly qualifies as [a] liberty [interest] which may not be denied with-out due process of law under the fifth amendment." And if there were any doubt about what Sherill meant, the D.C. Circuit more recently reaffirmed this conclusion in Karem v. Trump (D.C. Cir. 2020), holding that "a duly issued hard pass may not be suspended without due process."

Plaintiffs are also likely to succeed in showing that their hard passes were revoked without constitutionally adequate due process. The "general rule" is that "individuals must receive notice and an opportunity to be heard before the Government deprives them" of a constitutionally protected interest. Indeed, the Supreme Court has "described the root requirement of the Due Process Clause as being that an individual be given an opportunity for a hearing before he is deprived of any significant property interest."

Karem also holds that, because of the substantial interests at stake, before the Government can revoke the White House-issued hard pass of a reporter it must promulgate rules or standards governing the conduct that would lead to such revocation. And the reporter must "receive fair notice not only of the conduct that would subject him to punishment, but also of the magnitude of the sanction that the White House might impose."

Defendants do not dispute that Plaintiffs did not receive notice and an opportunity to be heard before their hard passes were revoked. And, as in Karem, the record is bereft of any relevant "formally articulated standards" in place before any of the conduct for which Defendants revoked their hard passes. One standard Defendants appear to offer—reflected in letters they sent to Plaintiffs on September 22, 2026, identifying their objectionable reporting—is so vague it hardly does the trick. See, e.g., ECF No. 16-1 ("[Y]our organization has exhibited behavior in violation of the standards of professionalism and decorum expected of those given access to the White House Complex."). Moreover, Defendants renewed Plaintiff Betsy Klein's hard pass several months after she published some of the identified reporting, undercutting any argument that she or her employer, for example, had the requisite notice that the conduct at issue violated a relevant standard. Finally, nothing put Plaintiffs on notice of the magnitude of the sanction Defendants imposed.

None of Defendants' arguments convince the Court that Plaintiffs are not likely to succeed on their due process claim. Defendants say that Sherrill and Karem were wrongly decided. Maybe—but this Court is bound by D.C. Circuit precedent, full stop.

Defendants also point to the letters referenced above, which they assert afford Plaintiffs post-deprivation notice of the revocations and an opportunity to be heard. And Defendants cite cases that suggest that such a post-deprivation process suffices in "extraordinary circumstances." These are such circumstances, Defendants argue, because Plaintiffs have endangered national security through their reporting.

But the circumstances here are not so "extraordinary" as to permit deviation from the "essential principle of due process" that a deprivation of liberty "be preceded by notice and opportunity for hearing." Zevallos holds that post-deprivation due process may suffice in unusual situations, such as when "providing notice before blocking the assets of international narcotics traffickers would create a substantial risk of asset flight." But nothing in the record suggests the need for such urgency here. Indeed, some of the reporting identified by Defendants in the letters to Plaintiffs stretches back months or years. The sorts of stories Defendants identify in the letters to Plaintiffs are routine. And as discussed further below, the Court is skeptical—at least on this record—that Defendants' interest in safeguarding national security is the actual motivation for, or is even advanced by, the revocation of Plaintiffs' hard passes. Finally, even if the circumstances here allowed for post-deprivation process, Defendants are still left with the problem that, before the reporting at issue, Plaintiffs still did not "receive fair notice" of either the "conduct" that would lead to a sanction or of "the magnitude of the sanction that the White House might impose."

{At the hearing on the Motion, Defendants argued that an adequate standard relating to the revocation of Plaintiffs' hard passes had been promulgated because the public is generally on notice that disclosure of classified information is unlawful. The Court is doubtful that the laws governing the retention, sharing, or mishandling of classified information provided Plaintiffs the sort of notice that satisfies Karem for several reasons, but especially given the lack of precedent for applying those laws to reporters. Moreover, just as the record lacks factual support for Defendants' contention that the revocation of Plaintiffs' hard passes will in fact protect national security (as discussed below), the record also lacks factual support for Defendants' contention that Plaintiffs violated these statutes, at least at this stage.} …

[And] nothing in the record that predates this suit suggests that the revocation of Plaintiffs' hard passes was motivated by national security concerns. Certainly, that is not what President Trump said when he announced that he was "banning" Plaintiffs from the White House—instead, he focused on the alleged lack of truthfulness and negativity of Plaintiffs' reporting. And even the justifications provided to Plaintiffs after this case was filed are ambiguous about the true purpose of the revocations: while Defendants' letters to Plaintiffs mention national security concerns, they purport to identify reporting that "threatened national security and/or spread falsehoods," leaving open the possibility that all the stories fall into the later bucket, rather than the former….

[T]he record [also] lacks factual support for Defendants' contention that the revocation of Plaintiffs' hard passes will in fact protect national security or that national security will be endangered if the Court orders their passes reinstated while this litigation proceeds. Defendants offer no declarations or other support—classified or unclassified—explaining how any of the reporting they identified in their letters to Plaintiffs damaged the national security…. And supplemental declarations filed by Plaintiffs show that, in most cases, the reporters who authored the stories Defendants identify in their letters did not even hold hard passes. In the remaining cases, Defendants afford no reason to believe that the reporter's possession of the hard pass was integral to the stories identified….

For the First Amendment analysis (which the court didn't have to reach given its decision on the Due Process Clause), see this post.

Ted Boutrous, Katie Townsend, Patrick J. Fuster, Connor S. Sullivan, and Connor P. Mui  (Gibson, Dunn & Crutcher LLP) represent the media.

The post TRO Issued Ordering Reinstatement of CNN, MS NOW, and Politico White House Access appeared first on Reason Magazine.

J. Ann Selzer … conducted political polls in Iowa for nearly four decades. Three days before the 2024 general election, the Des Moines Register … published a Selzer poll showing Kamala Harris leading Donald Trump in Iowa and Christina Bohannan leading Mariannette Miller-Meeks in Iowa's First Congressional District. The poll proved wrong.

This case arises from that error. Donald J. Trump, Mariannette Miller-Meeks, and Bradley Zaun … sue in their private capacities. The Petition pleads a violation of the Iowa Consumer Fraud Act, fraudulent misrepresentation, and negligent misrepresentation, and asks the Court to enjoin the publication of any further deceptive polls. Both Defendants have moved to dismiss….

At its core, the Plaintiffs' Petition seeks to stretch both Iowa statutory and common law beyond their current bounds, turning speech that enjoys the highest category of First Amendment protection into a liability. After considering the parties' arguments, the Court must conclude that the protection is too great and the reach is too far….

[F]alsity alone does not create a category of unprotected speech. The Supreme Court has never recognized that false statements by themselves are not entitled to First Amendment protection, and it refused to do so when squarely presented with the opportunity. The Eighth Circuit held that even knowingly false campaign speech is not excluded from the Amendment's protection….

With a limited number of exceptions to the First Amendment protection, the Plaintiff must proceed under the fraud exception. The speech, however, must meet what the exception demands…. The fraud exception is narrow, and the proof requirements for a fraud claim exist precisely to safeguard protected speech. A false statement alone does not produce liability. Rather, the constitutional exception involves a false claim made to secure money or other valuable consideration….

1. The Iowa Poll Was Not a Provably False Statement of Fact.

A poll is simply an estimate…. It is based on a known methodology, and concerns an event that has not yet happened. Things of that nature are not the sort of things that can be said to be true or false in the manner required by the fraud exception. Opinion polls of random samples of voters are snapshots with margins of error, and campaigns are dynamic. A statement of conjecture about a future state of affairs is not provably false, even when the speaker is alleged to have known better….

2. No Representation Was Made to Plaintiffs, and No Plaintiff Parted with Anything in Reliance …

No Plaintiff pleads that J. Ann Selzer or Selzer & Company communicated with him or her, solicited anything from him or her, or had any relationship with any Plaintiff, arising out of contract or otherwise. No Plaintiff pleads that he or she purchased the Iowa Poll, subscribed to the Register because of the Poll, or gave anything of value to any Defendant because of the Poll. Plaintiffs merely plead that false statements were published to the public and that bad things ensued. Whatever that may be, that is not fraud….

The plaintiffs' answer was that they had actually suffered damages, including campaign expenditures to offset the Iowa Poll, and that this made their case different from U.S. v. Alvarez (2012), where the false statements gained the speaker nothing. The answer confuses two different requirements. That a plaintiff was harmed does not establish that the speech was used to obtain money or property from him. Alvarez itself makes the distinction, explaining that to permit liability for false speech absent any evidence that the speech was used to gain a material advantage would confer a censorial power unprecedented in the Court's cases and in our constitutional tradition. Plaintiffs allege consequences. They do not allege a transaction….

[T]he Iowa Poll and its reporting are fully protected political speech, and the Petition does not allege the elements that would place that speech within the fraud exception. The First Amendment bars [all the claims].

Second, and independently, the Petition states no claim under Iowa law. Count I [violation of the Iowa Consumer Fraud Act] alleges no prohibited act in connection with the advertisement, sale, or lease of consumer merchandise, no ascertainable loss of money or property, and no reliance. Count II [fraudulent misrepresentation] alleges no representation made to induce any Plaintiff to act and no act taken in reliance on the truth of the polls. Count III [negligent misrepresentation] alleges no duty running from a pollster or a newspaper to a candidate. Either ground would require the same result on its own.

Robert Corn-Revere and Conor Fitzpatrick (FIRE) represent Selzer.

The post President Trump's Lawsuit Against Iowa Pollster Ann Selzer Thrown Out appeared first on Reason Magazine.

From Judge Mary Kay Costello (E.D. Pa.) Friday in McCausland v. Penn. State Univ.:

Plaintiff Jonathan McCausland is a former graduate student and teaching assistant ("TA") at Penn State University …. In 2024, Jeanine Staples-Dixon, a tenured professor at Penn State, published a book that disclosed Plaintiff's childhood sexual abuse….

The facts, as alleged by plaintiff:

In 2018, Plaintiff began working as a TA for Professor Staples-Dixon's Philadelphia Urban Seminar at Penn State. This yearly seminar was held in the summer for a small number of students. As part of the course, Staples-Dixon instructed her TAs to share their "gender stories." She explained that extreme vulnerability "was an essential part of the pedagogical value of the seminar," and she wanted her TAs to model that vulnerability for her students.

To facilitate open and honest communication among seminar participants, every student was required to complete several intake forms pertaining to confidentiality. The forms stated that all information shared in class would be confidential, would not be shared outside the classroom without permission, and would be anonymized in the event of publication. Neither Staples-Dixon nor the TAs signed the confidentiality forms.

During the summer 2018 seminar, Plaintiff shared a gender story relating to how competition and athletics shaped his ideas of masculinity. However, Plaintiff felt that this story was "insufficiently vulnerable when compared to the highly personal gender stories share by other" TAs. During a planning session for the 2019 seminar, Plaintiff shared with Staples-Dixon that he had been sexually abused as a child by older boys who lived in his neighborhood. Staples-Dixon encouraged Plaintiff to share his story with seminar participants because it revealed the exact kind of extreme vulnerability that she wanted to discuss in the course.

Trusting the norms of confidentiality in the seminar and the agreements signed by every student, Plaintiff agreed. With Staples-Dixon's encouragement, Plaintiff continued to share his sexual abuse with seminar participants during the 2020, 2021, and 2022 sessions. Plaintiff graduated from Penn State in 2022.

In December 2024, Staples-Dixon published "Extraordinary Pedagogies: An Endarkened Feminist Approach to Revolutionizing Teacher Consciousness" through Teachers College Press. She based the book on the research she conducted during the seminar. The book included the following passage recounting Plaintiff's sexual abuse:

Dr. JD McCausland talked about the sexual molestation he endured with his childhood best friend, perpetuated by a group of older, bigger teenage boys. He talked about the confusion, anger fear, and stress he endured via the abuse and how he felt tortured in his gender identity and sexual orientation until he generated the strength to claim his identify for himself as a straight, cis man. Telling these stories means locating your power. This is a feat, especially when one's gender identity, expression, and sexual orientation are crippled and corrupted by sexism, misogyny, and misogynoir….

When Plaintiff learned of the book in late February 2025, he felt betrayed. Staples-Dixon never sought Plaintiff's consent to publish his story, and he was particularly shocked by the fact that Staples-Dixon referenced him by name and professional title.

The court allowed plaintiff's disclosure of private facts claim to go forward (the Pennsylvania term for the tort is "publicity given to private life"):

"To state a claim for publicity given to private life, a plaintiff must allege that the matter publicized is '(1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.'" …

"A private fact is one that has not already been made public." A fact is made public "by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." However, "disclosures to a small number of persons do not" make a fact public….

Here, Plaintiff's disclosures to seminar participants were not substantially certain to make his experiences public knowledge. Plaintiff shared his sexual abuse with students during the seminar from 2019 to 2022. Each student completed an intake form stating that information shared in the course was confidential and would not be shared outside the classroom without permission.

Although Staples-Dixon emphasizes that neither she nor the other TAs signed that form, Plaintiff is entitled to an inference that the form and sensitive subject matter discussed in the seminar created an expectation of confidentiality. Indeed, even if Staples-Dixon and the other TAs could have discussed that information outside of the seminar, Plaintiff's disclosure to them did not make it substantially certain that his past abuse would become public knowledge. Given this context, Plaintiff has plausibly alleged that his sexual abuse was a private fact despite his disclosures to seminar participants….

The court also allowed plaintiff's intentional infliction of emotional distress claim to go forward:

"'Liability on an intentional infliction of emotional distress claim has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" …

Here, a reasonable fact finder could determine that Staples-Dixon's publication of Plaintiff's sexual abuse was extreme and outrageous. She published one of "the most private and personal aspects of Plaintiff's life." And Plaintiff shared with Staples-Dixon and other seminar participants that "this abuse had caused him lifelong struggles related to trust, relationships, intimacy, and identity." In fact, Plaintiff alleged that Staples-Dixon encouraged him to share his story precisely for that reason—"to model the extreme vulnerability called for by the Seminar's pedagogy." Therefore, like the dissemination of the sensitive records and intimate photographs in Hernandez, Staples-Dixon disclosure could reasonably be considered extreme and outrageous….

Plaintiff [also] alleged sufficient facts to support an inference that Staples-Dixon knew Plaintiff was particularly sensitive about his childhood abuse, yet she published that information anyway. Plaintiff alleged that he told Staples-Dixon that his abuse "caused him lifelong struggles related to trust, relationships, intimacy, and identity." Indeed, Staples-Dixon encouraged Plaintiff to share his "highly personal gender stor[y]" for that reason. When Plaintiff shared his story of abuse, Staples-Dixon stated that his story exemplified "the extreme vulnerability called for by the Seminar's pedagogy."

Despite this knowledge, Staples-Dixon proceeded to publish Plaintiff's abuse story and identify him by name. Given her knowledge of Plaintiff's emotional sensitivity, Staples-Dixon was, or reasonably should have been, substantially certain that her publication would cause Plaintiff severe emotional distress….

For related reasons, the court also allowed plaintiff to seek punitive damages against Staples-Dixon.

But the court held that Penn State wasn't directly liable for disclosure of private facts based on its own behavior:

Penn State publicized Staples-Dixon's book with a forum event in February 2025. Its online invitation encouraged students to join "a conversation about Professor of Education Jeanine Staples-Dixon's latest book." Penn State's website also noted in Staples-Dixon's faculty biography that she was "currently writing two books," including the book at issue….

Penn State's conduct was not substantially certain to make Plaintiff's abuse public knowledge. First, Penn State did not publish Staples-Dixon's book. Teachers College Press did. Plaintiff did not make any allegations to the contrary. Plaintiff speculates that Penn State may have approved the book for publication, but that is not enough to defeat a motion to dismiss…. "Factual allegations must be enough to raise a right to relief above the speculative level." …

Second, Penn State's promotion of Staples-Dixon's book did not communicate the content of the book….The [online] invitation states only that the event will include "a conversation about … Staples-Dixon's latest book." Nothing in this communication made it substantially certain that Plaintiff's sexual abuse would become public knowledge. The invitation includes no content from the book or any reference to Plaintiff. The same analysis applies with respect to Plaintiff's argument that Staples-Dixon's faculty biography constitutes publication because that biography merely states that she is "currently writing two books." Furthermore, even if Penn State's promotion had publicized Plaintiff's abuse, Staples-Dixon's book had already disclosed that information to the public.

For similar reasons, the court held that Penn State wasn't liable for intentional infliction of emotional distress. And the court held that Penn State couldn't be liable for either tort on an employer liability (respondeat superior) theory:

"[U]nder Pennsylvania law, an employer generally cannot be held liable for the intentional torts of its employees." To hold an employer vicariously liable for an employee's intentional tort, the employee's act must have occurred within the course and scope of employment. "[C]onduct is within the scope of employment if, but only if: (a) it is the kind [the employee] is employed to perform; (b) it occurs substantially within the authorized time and space limits[; and] (c) it is actuated, at least in part, by a purpose to serve the master."

Here, Plaintiff alleged no facts showing that Staples-Dixon's publication of the book was within the scope of her employment. The only allegation related to the nature of the relationship between Defendants is that Staples-Dixon is a tenured professor at Penn State where she taught the summer seminar…. In any event, even if publication of research was part of Staples-Dixon's job in general, Plaintiff failed to plausibly allege that the publication of this book in particular was within the scope of her employment.

Moreover, Plaintiff alleged that Staples-Dixon motivation in publishing the book was personal. The only motivation attributed to Staples-Dixon was that she published the book "for commercial gain." Tortious conduct committed for personal reasons is not within the scope of employment. Staples-Dixon's "commercial gain" from publishing the book is a personal pecuniary interest. Beyond these allegations, Plaintiff alleged no facts to show that Staples-Dixon's writing and publishing of the book was "actuated, at least in part, by a purpose to serve" Penn State. Therefore, the Court will grant Penn State's motion to dismiss Plaintiff's vicarious liability claims without prejudice.

Lane R. Jubb Jr. and Andrew Warshawer (The Beasley Firm) represent plaintiff. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Privacy Lawsuit Over Prof's Book That Mentions Former TA's Childhood Sexual Abuse Can Go Forward appeared first on Reason Magazine.

In 2018, URI recruited and hired Dr. Gifty Ako-Adounvo, as Vice Provost for Global Initiatives and Senior International Officer. Dr. Ako-Adounvo asked for URI's help to locate employment for Fosu, her domestic partner, and when no outside employment options were found, URI appointed him as a visiting professor for the 2019 spring semester. URI appointed Fosu to a faculty of practice to teach in the Political Science Department for the 2019-2020 academic year. A faculty of practice is a one-year appointment and a non-tenure position.

Fosu did not have the academic qualifications to teach core curriculum classes in the Political Science Department. The Chair of the Political Science Department, Professor Marc Hutchison, decided that Fosu could teach elective courses as a faculty of practice. Fosu was to teach a course on the Supreme Court and constitutional law, and he also proposed a course on advocacy, which was approved. During the 2019-2020 academic year, Fosu taught elective undergraduate courses on constitutional law and advocacy and a graduate course….

[2.] The court discussed various bases for Fosu's appointment not being renewed; here's an excerpt of that, though there were other things happening as well. Note that, "[b]ecause Fosu has not responded to defendants' motion [for summary judgment]," the court "accept[ed] as uncontested defendants' recitation of the material facts":

On October 26, 2020, Fosu sent an email titled "Declaration of Diversity" to URI President Dooley, along with many others including members of the URI faculty and staff, URI students, law enforcement officials, and government officials. Fosu again targeted the Chief Diversity Officer, Mary Almandrez, and criticized the hiring process involving Dr. Sylvia Spears and Dr. Harry Alston. He accused the URI faculty and staff of racism, collusion, unethical conduct, and violations of the law.

The email included a boxed warning that "all parties mentioned in this letter and involved in the Dr. Harry Alston and Dr. Sylvia Spears interview process must not shred or destroy any documents, must not delete any emails or electronic messages from November 1, 2019 to present." Fosu also asserted that he and others invoked their Fourth Amendment rights.

In the email, Fosu notified President Dooley that Fosu's private corporation, Diversity Think Tank, was "headquartered" at URI and that it was the corporation's goal "to directly target and expose URI's indefensible and offensively prejudicial and discriminatory policies and the people who perpetuate intentional racism and normalized racist inequities through the machinations of white supremacy." …

[Fosu attached a] "Declaration of Diversity" that purported to be issued by "organized URI students." The Declaration began with a statement that "We as organized URI student, hold these facts to be self-evident, that there is a deliberate and racist dehumanizing exclusion of highly qualified African-Americans/Blacks, Latinos/Hispanics and Native Americans from positions of senior leadership and other positions throughout the university, including Administrative Staff, Deans, Department Chairs, Faculty, Functional Staff and Students." …

The Declaration included 46 "complaints and demands," one of which said:

We students will create a White-list of all those white professors who define and list themselves as diversity initiative conveners, race experts and researchers while they are silent and benefit from white supremacy and racism at URI, self-evident by the fact that no African-American with an ancestry to slavery and no Latino has been hired to a senior leadership position since 1892—and NOT ONE WHITE FACULTY member has expressed a problem with that fact, and the glaring fact that there are NO BLACK FACULTY members in the Criminal Justice Department and only a couple at the Harrington School. You white professors do not need research to find out about systemic racism at URI—you are part and parcel of the creation and maintenance of systemic racism at URI though your self-serving policies, unapologetic excuses, discriminatory behavior and your hegemonic culture of impunity. You should be ashamed of yourselves and we will help end this metastasized disease of racism. Your panel discussions about diversity and ethics should be our panel discussions about diversity and ethics, and we pick who should be on these panels.

"The Declaration was signed by four URI students who were identified as Diversity Think Tank trustees, non-student trustees of Diversity Think Tank, and Fosu."

This unsurprisingly led to tensions with other faculty members:

Several of the faculty expressed concern to the department chair, Professor Hutchison, about the email and the Declaration of Diversity….. [Also, during a] Political Science Department[] meeting[,] … Fosu talked over other faculty and talked about bringing in his army of lawyers. The faculty felt that if they disagreed with Fosu, he labeled them racist…. [In a follow-up e-mail, he] criticized his treatment during the meeting and asserted that the faculty had to stand against racism or they supported racism. He also called out individual faculty members to refute [perhaps meaning "recant"? -EV] their positions during the department meeting. To one female faculty member, Fosu wrote:

[R]acism and discrimination are not complex or complicated matters to understand as you mentioned and implied in your job candidate example…. Maybe you should reflect and recognize that the highly qualified Black person who interviewed as your search committee's first choice, likely declined the job because s/he wanted to avoid a perceived impending racial conflict and marginalization after encountering the reality of our intensely all-white environment…. Step out of your personal defensive mode nurtured naturally by white privilege and empathize with Black candidates who walk on this campus…. I experienced that subtle disrespect and suspicious questioning during our meeting on Friday.

In response to another faculty member's discussion during the meeting, Fosu wrote: "The main beneficiaries of Affirmative Action have been White women—not Black men and not Black women—cultural hegemony has been very successful at falsely convincing us that Blacks predominately benefit from Affirmative Action." Fosu further wrote that "[w]hat I was discussing with [a male faculty member] on a deeper level before I was interrupted by [the female faculty member] is that we cannot rely on an institution that has been systemically racist for 128 years to produce progressive policies that advance racial equity."

Hutchison testified in his deposition that Fosu's email caused distress in the department. Faculty were concerned that they would be publicly accused of being racist if they taught about race issues in class. Other faculty told Hutchison that the department could not talk with Fosu because he would not hear any point of view except his own. The targeted female faculty member told Hutchison that Fosu was creating a hostile work environment and bullying female colleagues….

[3.] There were also several student complaints; the court goes through the details, but here's one sample:

Vice President of Student Affairs Kathy Collins … summarized [one] student's report, as follows:

1. Declaration for Diversity was pre-written by Mr. Fosu and taken to class in September, 2020. Students were able to do edits and provide comments in a google doc. None of their comments and edits were accepted into the document. The student [I] spoke with has not "seen the document since September." When students asked if they could edit it, they were told, "no."
2. The petition that is up on change.org was circulated in class and students were told to sign at the start of a recent class. Students did not write the petition.
3. Multiple students have requested of Mr. Fosu to have their names removed from documents, emails, etc. They were informed by Mr. Fosu that their names could not be removed. He shared that they were "legally required to be named because" they "reviewed the document."

The student also shared:

• students are "very fearful about grades"
• students are "uncomfortable in class"—especially with the "misogyny"
• the student expressed that the class was full of "extreme radicalism"
• the student expressed that Mr. Fosu sees students as "collateral damage."

Student 4 then met with Hutchison, reporting that Fosu intimidated students into going along with the Declaration of Diversity. The student said that students were not allowed to have a voice.

Student 4 reported misogyny in Fosu's treatment of female students. Student 4 also reported that Fosu uses "inappropriate and crude language in class," which made Student 4 uncomfortable, and that they had received inappropriate emails and requests. In addition, the student said that Fosu cancelled classes without warning….

A bit more about Fosu's interactions with students:

In December of 2020 and continuing into January of 2021 four of the six URI students who signed the Declaration of Diversity as trustees of Fosu's Diversity Think Tank resigned from the Diversity Think Tank. The students asked Fosu to remove their names from all Diversity Think Tank materials. In their resignation emails, the students explained that they did not agree with Fosu's goals and actions and that he had sidelined the students' interests.

Fosu responded to the first student and everyone else on the email list in a long email with multiple references to the student as a white man and saying "[o]nly a person who is very privileged would make a false statement that I do not have the best interests of students." Fosu's response to the resignation of the other three students identified them by name, and, included URI community members beyond Diversity Think Tank. Fosu stated that he forgave the students for their "fabrications, ulterior motives and for the pusillanimity of [their] incoherent email."

He also said that that "this collective tantrum from you three, is because I shut down your childhood friend and frat brother [the first student to resign] … [and] [t]he next [he] has a difference of opinion or disagreement with any Black/African American man of my caliber he will know how to speak properly and disagree respectfully." At the end of January, another student resigned from the Diversity Think Tank referencing Fosu's responses as "accusatory, disagreeable behavior." …

[4.] The court concluded that the speech was unprotected under the First Amendment under the test applicable to government employee speech:

[Under Pickering v. Bd. of Ed. (1968)], the court balances "the value of an employee's speech—both the employee's own interests and the public's interest in the information the employee seeks to impart—against the employer's legitimate government interest in preventing unnecessary disruptions and inefficiencies in carrying out its public service mission." …

Fosu's interest in racism at URI … [and] his concerns about diversity in hiring and in the student body at URI are recognized public issues. Nevertheless, under the current rule in the First Circuit, "[s]peech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balancing." Fosu's emails and much of the Declaration of Diversity are insulting to Chief Diversity Officer Almandrez and others and include personal attacks and denigrating remarks about individuals and URI faculty and administration. Those communications generally are entitled to less weight for purposes of balancing interests.

On the other side of the balance, URI put Fuso on administrative leave because of his misconduct. Specifically,

coercion, intimidation, and retaliation toward students limiting their free pursuit of learning;

public expressions of hostility, harassment, and disrespectful and threatening behavior toward colleagues, and disrespect for opinions that are divergent from your own;

[and] disruption of departmental processes and overt efforts on your part to interfere with formally sanctioned university processes and procedures….

Fosu frequently was late to class and cancelled class. His students were intimidated by him and afraid of retribution if they did not agree with and participate in his agenda and his company, the Diversity Think Tank. Faculty in the Political Science Department found him to be uninvolved and disruptive when he was involved. Fosu expressed misogynistic views that intimidated his students and faculty in his department….

Therefore, the balance of interests strongly favors defendants. As a result, Fosu has not demonstrated that his speech is entitled to First Amendment Protection….

Steven M. Richard represents URI.

The post Court Upholds Nonrenewal of URI Lecturer Who Circulated Combative "Declaration of Diversity," Allegedly Intimidated Students appeared first on Reason Magazine.

The post Today in Supreme Court History: September 23, 1971 appeared first on Reason Magazine.

Jack Goldsmith: President Trump regularly breaks news on his social media platform, Truth Social, where he posts market-moving presidential and White House announcements. The company now sells faster access to those posts for up to $100,000 a month. The advantage is apparently just 50 milliseconds, but that is enough to benefit traders.

To date, the early access has attracted more than a dozen subscribers. The arrangement effectively lets Trump profit off the presidency. Can this arrangement possibly be lawful? …

John Coates: … If you pay roughly $1.2 million a year to Trump Media, you get Trump's Truth Social postings ever so slightly before they hit the public website. And Truth Social, of course, is Trump's primary way to talk to the public.

In fairness, just one little nuance: it's not Trump himself selling this access. It's Trump Media. He did create that company. He only owns 41% of it. He's not an officer of it. His stock is in a trust. His son is the trustee. He's the sole beneficiary of the trust, and Trump can revoke the trust at any time. So I say all that just to be fair. But nevertheless, yes, I think you captured it correctly.

[Goldsmith:] So that's good. But given that financial arrangement, is it fair to say that he is an ultimate beneficiary, at least in part, of this $100,000-a-month fee?

[Coates:] Yes. He's directly profiting through his indirect ownership of Trump Media.

[Goldsmith:] John, outside the Truth Social context, isn't selling low-latency access to already public information a standard business practice done by Bloomberg, Dow Jones, and the like?

Yes. I mean, even 50 milliseconds of a timing advantage is commonly paid for by third parties in the markets. The easiest example is arbitrageurs who are trading in two different markets and see the same asset being traded at slightly different prices. They buy in one, they sell in the other, and the faster they can exploit that gap, hopefully before anybody else does, the more likely they're going to profit from that. And so they'll pay millions to co-locate—to physically locate their computer systems very close to the source of whatever information they're trading on.

But here's the difference between that, which is pretty common, and what's going on here. In those situations, the public information is being both produced and sold by a for-profit company, typically either a news source or a market like the New York Stock Exchange. And selling access is something they're entitled to do. They're selling the right to get their information in a way that they can profit from the most.

Here, the information that's being sold certainly doesn't belong to Trump Media. And I don't think it credibly belongs to Trump himself either. He's functioning in a public role when he makes many of these announcements. I suppose you might divide his posts up into those that are just him ranting about his personal things—and maybe that has an effect on the market, and maybe you treat those differently—but when he announces over his posts that we're going to war, he's not announcing that as a private citizen or as a businessman. He's announcing it as president. And that means that someone who's profiting on that is indirectly paying him to trade in the market ahead of the public, on information that belongs to the public, on a differential basis….

The whole thing is much worth reading.

The post "Is Trump Media's Early-Access Feed Lawful?" appeared first on Reason Magazine.