In 2023, Defendant WP Company LLC (the "Post") published an article titled "Trust linked to porn-friendly bank could gain a stake in Trump's Truth Social," which reported on the finances of Trump Media Technology Group ("TMTG"). After almost three years of litigation, the Post has now admitted that portions of the article included false information. Specifically, the Post admits its story incorrectly stated that TMTG paid a $240,000 referral fee in connection with an $8 million loan from an entity known as ES Family Trust. The Post now admits that no such payment was made and recently chose to publish a "Correction" to that effect {"Discovery in the ongoing litigation has established that Trump Media didn't pay a loan referral fee of $240,000, as was stated in the article and was based on The Post's reporting at the time of publication."}. TMTG contends in this defamation lawsuit that the statements about the referral fee were false and defamatory and seeks almost $2 billion in damages resulting from the publication.

However, under controlling United States Supreme Court and Eleventh Circuit precedent following New York Times Co. v. Sullivan (1964), a jury will not have the opportunity to decide this case. To survive summary judgment, TMTG must show more than just that the Post's statements were false and defamatory.

Current law requires that TMTG also establish that the Post acted with "actual malice," that is, TMTG must prove that, at the time the Post published the statements, the Post either actually knew the statements were false or had serious doubt as to whether they were true or false. Further, to prevail under current law, TMTG must establish actual malice by evidence that goes beyond the "preponderance of the evidence" necessary in the usual civil case and adduce evidence on this issue that is clear and convincing.

These standards are exceedingly difficult for any plaintiff to meet, and TMTG has not met them here. TMTG's evidence establishes beyond any doubt whatsoever that the Post published false information—the Post has admitted that. Under the facts presented here, reasonable minds could certainly conclude the Post acted unreasonably and should have conducted a better investigation before making the challenged statements. But under controlling precedent, such a showing is not sufficient to establish actual malice by clear and convincing evidence. Accordingly, the Court is required to grant summary judgment for the Post….

The circumstantial evidence adduced by TMTG certainly supports a jury finding that the Post acted unreasonably and should have done a more thorough investigation into the alleged payment of the finder's fee. But it falls short of providing a basis for a jury finding that the evidence clearly and convincingly shows that the Post knew the story was false or published it with reckless disregard of whether it was false, that is, with serious doubt as to whether the story was true or false or with a high degree of awareness that the story was probably false.

First, there is no evidence that the Post fabricated the story that TMTG paid a finder's fee, nor is there anything inherently implausible or even extraordinary about the story itself.

Second, the Post did not rely on anonymous tips, rumors, or other manifestly unreliable sources as is sometimes the case. It relied on information received from Wilkerson, an insider in position to know the truth, who was willing to go on the record, and who was providing information not only to the Post but also to other newspapers and government officials. The Post also relied on information from Wilkerson's lawyers, whom the Post understood to be providing information on behalf of Wilkerson. See id. (affirming dismissal of defamation complaint where the story was not based on an unverified anonymous phone call).

[Reporter Drew] Harwell's declaration asserts that Wilkerson's lawyers told him that TMTG paid the fee. His contemporaneous notes confirm that assertion, as does a recording of an interview session involving not only the lawyers but Wilkerson himself. TMTG does not dispute Harwell's assertions. Although Wilkerson's deposition testimony might be slightly inconsistent with Harwell's declaration and raise an issue of fact as to whether Wilkerson himself actually told Harwell that TMTG paid the fee, Wilkerson does not deny that his lawyers did so.

TMTG argues that Wilkerson was an unreliable source because TMTG suspended and then fired Wilkerson, giving him a motive to fabricate the story in retaliation. As the Court has previously observed, an employee's termination does not necessarily cast doubt on negative information the employee provides about an employer.

Further, it is undisputed that Wilkerson did not "blow the whistle" after he had been fired. He was fired for "blowing the whistle," i.e., for providing information to the press. Harwell's declaration explains that he assessed Wilkerson's credibility and concluded based on past experience with Wilkerson that Wilkerson was reliable. No record evidence casts doubt on that assertion.

Third, the Post investigated the story by reviewing documents provided by Wilkerson and his lawyers, including a draft fee agreement and an invoice for the fee apparently from Entoro Securities. These documents are fully consistent with the assertion by Wilkerson's lawyers that TMTG paid the fee although they do not directly confirm it. They certainly do not contradict it. Harwell can be faulted for not pressing to obtain final documents or additional confirmation, but there is no evidence that

anyone or any document told Harwell the fee had not been paid. In the absence of an obvious reason to doubt the story, Harwell's failure to seek additional confirmation does not suggest that he actually doubted the fee had been paid and purposefully sought to avoid the truth.

Fourth, prior to publishing, and consistent with his usual practice, Harwell sent to TMTG and others what the Post refers to as "no surprises" emails. These are sent to provide the subjects of an article an overview of information that may be included in the article, to give the subjects notice and a chance to comment or provide additional information. Harwell reached out to a number of different sources that included TMTG itself, TMTG CEO Devin Nunes, TMTG co-founders Wes Moss and Andy Litinsky, DWAC CEO Patrick Orlando, Entoro partner James Row, and the SEC. None responded with any information.

TMTG criticizes Harwell's "no surprises" email on the ground that it referred only to the fee agreement rather than to payment of the fee, but the email's express reference to the fee agreement and to "Entoro's referral fee" is not what one would expect if the Post were trying to avoid the truth about the fee. If, as TMTG claims, the payment, not the agreement, is the critical fact, the Post's "no surprises" email could be expected to elicit an explanation from TMTG that, regardless of any agreement, the fee had not been paid. The notion that the reference to the fee agreement in the "no surprises" emails was intended to distract attention from the subject of payment of the fee is speculative and insufficient to create a genuine issue of fact.

TMTG also argues that the Post sought confirmation from sources that it expected would not respond. While government agencies might be expected to decline comment on ongoing cases or investigations, that is not true of the many other sources noted above to whom the Post reached out.

TMTG argues that actual malice is demonstrated by the fact that the Post learned within a few days after publication that its own sources lacked proof of payment but did not issue a correction. But the crucial inquiry for actual malice is the Post's state of mind at the time of publication. Assuming the Post's failure to correct the story immediately upon learning that Wilkerson had no knowledge that payment had been made is relevant at all to the Post's knowledge and state of mind at the time of publication, any inference from these post-publication facts to actual malice at the time of publication is speculative at best.

TMTG further argues that actual malice can be inferred from Harwell telling Professor Ohlrogge, an expert at New York University Law School that he consulted while developing the story, about an agreement to pay the fee but failing to inform him that the document the Post relied on as evidence of the agreement was an unsigned draft. However, Harwell stated in his declaration that he sent a copy of the draft agreement to Ohlrogge, and in any event, telling Ohlrogge there was an agreement or payment is perfectly consistent with Harwell's belief that there was an agreement and payment; it is hardly evidence that Harwell knew or doubted those things were true.

In short, a source who was in a position to know the truth and was not obviously unreliable told the Post that TMTG paid a finder's fee for the ES Family Trust loan. The idea that TMTG would pay such a fee is not inherently implausible. The source provided the Post with documents consistent with the assertion of payment although not directly confirming it. No person or document contradicted what the Post had been told. The Post reached out prior to publication to numerous sources, but none provided contrary information….

Although it is rooted in the First Amendment, which was adopted in 1791, the law applicable here was essentially invented by the U.S. Supreme Court in 1964 when it decided New York Times v. Sullivan. "Since 1964, however, our Nation's media landscape has shifted in ways few could have foreseen." Numerous justices, judges, and commentators have suggested that the law in this area needs to be revisited….

This Court shares many of [these] concerns, and if it were deciding this case on a clean slate, the result might be different. If the law did not require "clear and convincing evidence" of actual malice, it is likely the Post's motion for summary judgment would have been denied, and a jury would have had the opportunity to weigh in on this matter. However, "until the Supreme Court reconsiders Sullivan, we are bound by it[.]" As explained above, under controlling law, TMTG's evidence is insufficient to support a finding of actual malice under the clear and convincing standard, and summary judgment for the Post is therefore required….

Last year, Judge Barber had allowed the case to go forward based on the allegations in the Complaint, denying the Post defendants' motion to dismiss. But now that there has been discovery, the judge concluded that Trump Media hadn't introduced enough evidence to withstand a motion for summary judgment.

The post Trump Media's Lawsuit Against Wash. Post Over "Trust Linked to Porn-Friendly Bank Could Gain a Stake in Trump's Truth Social" Thrown Out appeared first on Reason.com.

Isabella Giusti ("Izzy"), Joni Saxon-Giusti, and Peter Giusti (collectively, "the Giustis") filed a lawsuit against Accuracy in Media, Inc., and its president Adam Guillette (collectively, "Accuracy in Media") asserting claims for defamation [and other torts]….

Here's a summary of plaintiffs' allegations:

Izzy, a native of Savannah, was a junior at Barnard College during the 2023-24 school year. Joni Saxon-Giusti and Peter Giusti are Izzy's parents. On April 18, 2024, Izzy joined a protest regarding the war in Gaza on Columbia University's main quad. During this protest, Izzy was arrested as part of a mass arrest of approximately 100 students. After Izzy was arrested, the New York Post ran an article identifying Izzy as one of the protesters who had been arrested.

On April 21, 2024, a masked person holding a sign that read "AL-QASAM'S NEXT TARGETS" was photographed in front of multiple pro-Israel counter-protestors near Columbia's main quad. According to the Giustis' verified complaint, the Al-Qassam Brigades are the military wing of Hamas, and, under the circumstances, the sign was rightly understood by those who saw it to be offensive and unacceptable and to imply that the counter-protestors should or would be subject to violence.

Izzy was not the masked person in the photograph holding the sign and was not at the protest when the photograph was taken. Nevertheless, several organizations opposed to the student protest at Columbia falsely claimed that Izzy was the person holding the sign.

By April 22, 2024, Accuracy in Media knew that "there[ were] questions as to if the picture [was] actually" Izzy. On May 1, 2024, Accuracy in Media purchased a website, www.izzygiusti.com. The website incorrectly identified Izzy as the person holding the sign in the photograph. On May 3, 2024, Guillette traveled to Savannah with a mobile billboard truck displaying Izzy's name and photograph and the web address "IzzyGiusti.com."

According to Guillette, the purpose of his trip to Savannah was to interview Izzy's parents and conduct sidewalk interviews regarding Izzy. According to the Giustis, the purpose of the trip was to harass Izzy's family in the family's hometown. The mobile billboard truck and Guillette went near Joni Saxon-Giusti's bookstore and targeted Peter Giusti at the family home, "mocking political signs in the home's window, mocked Izzy's family for avoiding an interview, and wondering in a subsequent write-up how the family was responsible for raising a 'raging antisemite[.]'" Accuracy in Media subsequently revised the website, cropping the photograph of the person holding the sign so that the text of the sign was no longer visible, and displaying the photograph next to a photograph of Izzy, with both photographs under the heading "Columbia's Leading Antisemite Isabella Giusti." …

And the legal analysis:

Accuracy in Media argues that the core of its publications was true—that Izzy was arrested at an extremist anti-Israel encampment at Columbia University, an event that Accuracy in Media believed to be antisemitic. Accuracy in Media further argues that labeling someone an "antisemite" is an example of rhetorical hyperbole or opinion.

However, the Giustis' defamation claims originate from the misidentification of Izzy as the person holding the sign at the April 21 protest. Specifically, the Giustis alleged that Accuracy in Media defamed Izzy by causing "a website to be published that falsely accused Plaintiff of being the person holding the offensive sign, and [Accuracy in Media] caused a mobile billboard truck to be driven through Savannah bearing similar messages."

The Giustis also alleged that Accuracy in Media defamed Joni Saxon-Giusti and Peter Giusti by publishing statements falsely "indicating that their parenting had caused Izzy to be the person holding the offensive sign and otherwise caused her to be a 'raging antisemite,' when in fact the underlying assumption for that statement was wholly inaccurate." At this stage of the proceeding [the defendants' anti-SLAPP motion to strike the Giustis' complaint], we must accept the Giustis' evidence as true.

Furthermore, "there is no wholesale defamation exception for anything that might be labeled opinion. An opinion can constitute actionable defamation if the opinion can reasonably be interpreted, according to the context of the entire writing in which the opinion appears, to state or to imply defamatory facts about the plaintiff that are capable of being proved false." Here, at least some of the statements that the Giustis allege were published by Accuracy in Media may be reasonably understood to state or imply defamatory facts about the Giustis that could be proven false….

The post Claim That Accuracy in Media Misidentified the Person Holding Allegedly Pro-Hamas-Violence Sign at Columbia Protest … appeared first on Reason.com.

The post Today in Supreme Court History: July 16, 2019 appeared first on Reason.com.

This is unsurprising, given the 2-1 split on the panel and given the prominence of the case. And of course the indication of an up coming en banc vote isn't that telling, given that the vote may well come out against review. Still, because this is such a prominent case, I thought I'd note the development.

[* * *]

Some excerpts from [the] very long opinion in Pernell v. Fla. Bd. of Governors of State Univ. by Judge Britt Grant, joined by Judge Charles Wilson; note that the leading Eleventh Circuit precedent on this is Bishop v. Aronov, which both opinions discuss in considerable detail:

[A.] The provision at issue here disallows any "training or instruction that espouses, promotes, advances, inculcates, or compels" students at Florida's public colleges and universities to believe any of eight concepts relating to topics like race and sex:

1. Members of one race, color, national origin, or sex are morally superior to members of another race, color, national origin, or sex.
2. A person, by virtue of his or her race, color, national origin, or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
3. A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin, or sex.
4. Members of one race, color, national origin, or sex cannot and should not attempt to treat others without respect to race, color, national origin, or sex.
5. A person, by virtue of his or her race, color, national origin, or sex, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, national origin, or sex.
6. A person, by virtue of his or her race, color, national origin, or sex, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
7. A person, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the person played no part, committed in the past by other members of the same race, color, national origin, or sex.
8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, national origin, or sex to oppress members of another race, color, national origin, or sex.

Though "promot[ing]" any of these concepts is barred, criticizing them is not. Beyond that, the Act allows instructors to introduce the ideas in a neutral fashion, permitting discussion "as part of a larger course"—so long as "instruction is given in an objective manner without endorsement of the concepts." And the law does not say how far past the classroom its restrictions extend—off-campus speeches and other settings may be in play….

{The Act's terms apply to all public schools, starting with kindergarten and going through graduate school, but the plaintiffs challenge only its application to postsecondary schools.}

[B.] [The defendants argue] that because Florida "appropriates public funds" to support public education at the State's universities, it is "entitled to say what it wishes" at those universities [under the government speech doctrine]. That is a sweeping assertion, and one that is unsupported by the cited government speech precedents.

Those cases are about public monuments, license plates, and the like—not anything close to academic teaching. The thrust of their holdings is that when the government speaks it can choose its message. There is no need, as the Supreme Court put it, for a local government that supports recycling to include a counterargument from the local trash company. The classic government speech cases Florida leans on are also about the government itself expressing certain ideas—not banning employees from endorsing others. Even so, the State asserts that "if the speech of private individuals proposing license plate slogans is government speech, then surely the classroom speech of state-employed educators at state universities is too." But why? Florida does not say….

{Of course[,] universities have control over their own curriculums…. They need not offer, for instance, every class a student would like to take. But that does not resolve, or really even address, the issues in this case.}

A variety of factors are at play when considering whether the government is speaking …. Several considerations may be relevant, including "whether the government maintains control over the speech," "whether the type of speech has traditionally communicated government messages," and "whether the public would reasonably believe that the government has endorsed the speech."

We first consider whether the government maintains control over the speech here. The State has traditionally exercised relatively little control over postsecondary education, especially as compared to public primary or secondary education. Florida imposes few curricular requirements by statute. And those that it does impose involve basic general education requirements—things like how many core classes students must take to graduate and what standards a communications course must meet. (Such a course "must afford students the ability to communicate effectively.")

And the "purpose and mission" of Florida's postsecondary educational system, as defined by state law, is to "enable[] all students to participate in the search for knowledge and individual development," to "discover and disseminate knowledge," to "foster[] diversity of educational opportunity," and to "develop in students heightened intellectual, cultural, and humane sensitivities." These broad ambitions are inconsistent with unrestricted control over the messages conveyed by university professors.

The relative independence of Florida's universities diverges from the State's near plenary authority over primary and secondary education, where "state academic standards establish the core content of the curricula to be taught in the state." In exercising this broad authority, the State Board of Education has adopted a comprehensive list of educational standards—nearing 7,300 in number and spanning every subject and every grade. To meet these standards, moreover, public school teachers must "us[e] the books and materials required," "follow[] the prescribed courses of study," and only "employ[] approved methods of instruction." The state government, in short, has traditionally controlled the curriculum in primary and secondary schools, but offers only minimal statutory guidance in the postsecondary education context.

The State's relative detachment from college lectures is even more revealing when compared to the level of state control we see in the government speech context—nearly total. A few examples illustrate the point. In one case about the use of a stadium loudspeaker during a state championship game, this Court explained that the announcer's remarks were "entirely scripted," with "[e]very word" written by a state employee. And in another involving a USDA-sponsored pro-beef campaign, the Supreme Court noted that the government exercised "final approval authority over every word used." Florida does not—and could not—exercise that kind of control over every postsecondary class lecture. Indeed, Florida does not argue that it has controlled every word that university professors say, only that it can.

And common sense also has a role to play here. Does anyone really think that every professor in every class at every public university is putting forward the official line of the State's political branches? So while the government speech doctrine "does not require omnipotence," Florida has not come close to exhibiting the degree of control necessary to classify professors' lectures as government speech.

The second and third factors—whether the speech has traditionally communicated government messages and whether the public would view the speech as endorsed by the government—are closely related here. Certainly at some level the public perceives a seal of approval from the State for the curricular decisions of its universities. And courts have recognized that the universities themselves at least have control over "the parameters of focus and general subject matter of curriculum."

But the text of this law does not seek to develop the curriculum of a university, of a major, or even of a class. Instead, it seeks to bar disfavored speech on one set of topics at every university and in any class. And it does so in a way that contradicts Florida's longstanding (and presumably still valid) statutes governing its universities.

Florida law, for instance, requires state universities to continually assess "the intellectual freedom and viewpoint diversity" and "the extent to which competing ideas and perspectives are presented" at the school. And the Board of Governors is forbidden from limiting students' "access to, or observation of, ideas and opinions that they may find uncomfortable, unwelcome, disagreeable, or offensive," if that speech is protected by the First Amendment.

These principles are consistent with the Supreme Court's recognition that the "classroom is peculiarly the 'marketplace of ideas.'" And they are inconsistent with the idea that university professors communicate government messages as mouthpieces of the state. These statutes (together with common sense) make clear that the public—and even the State—both recognize that university professors speak independently and without government endorsement of every idea they communicate….

[Moreover, the Supreme Court's leading government employee speech cases] centered on disciplining a single employee who had already spoken—"a post hoc analysis of one employee's speech and its impact on that employee's public responsibilities." United States v. Nat'l Treasury Emps. Union (1995). Here, the government's attempt to control employee speech is at the other end of the spectrum. The Act is a wide-ranging, ex ante restriction on the speech of every public university professor in the state. Because the Act "chills potential speech before it happens," the State's "burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action." …

[C.] [W]e are still left with a difficult question: can the Individual Freedom Act's speech restrictions be constitutionally applied to these professors? After all, though it offers little direct control, Florida (like other states) is fundamentally in charge of its public universities, appointing most members of the Board of Governors, providing considerable funding, and establishing certain core curricular standards.

"Federal judges should not be ersatz deans or educators." And because "States historically have been sovereign" in the field of education, the "traditional role in the formulation and execution of educational policy" belongs to them—not us. That leaves federal courts "reluctan[t] to trench on the prerogatives of state and local educational institutions." But these precedents, like their counterparts reserving space in the First Amendment catalogue for academic freedom, fail to provide a direct answer to the question we consider today.

We … [turn] to Bishop v. Aronov (11th Cir. 1991), which asked as we do here, "to what degree a school may control classroom instruction before touching the First Amendment rights of a teacher." … [T]hat case arose when the University of Alabama barred one of its professors from using class time to describe his religious views. Some of his comments concerned his belief in "the creative force behind human physiology." Others were made to share his faith, be open about his biases, and offer suggestions for students on how to deal with academic stress. But the students sought something else—an uninterrupted course on exercise physiology. After enough complaints, the University directed Bishop to stop, forbidding him from "presenting his religious viewpoint during instructional time, even to the extent that it represent[ed] his professional opinion about his subject matter." We ultimately rejected the professor's free speech challenge to that restriction.

Here, Florida suggests that a direct line connects the constitutionality of the University's response to Bishop with the constitutionality of the Florida political branches' prophylactic speech ban on all public college and university professors. Not so. Bishop itself instructs that there is "no substitute for a case-by-case inquiry into whether the legitimate interests of the authorities are demonstrably sufficient to circumscribe a teacher's speech." …

[F]ollowing Bishop's lead, we recognize "the 'basic educational mission'" of the university system, which authorizes "the use of 'reasonable restrictions' over in-class speech that [the State] could not censor outside the classroom." Along those same lines, we recognize Hazelwood Sch. Dist. v. Kuhlmeier's holding (endorsed in Bishop) that "educators do not offend the First Amendment by exercising editorial control over the style and content of student or professor speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

These factors cash out to the recognition that here, as in other First Amendment cases, we are called to balance the professors' interests against the State's. But the government's interests in this equation are rather circumscribed: editorial control is taken for granted, but restrictions must be reasonable and related to legitimate pedagogical concerns. In conducting this analysis, we consider Bishop's three general factors: the context of the speech; the state's "position as a public employer"; and the "strong predilection for academic freedom as an adjunct of the free speech rights of the First Amendment."

First, context. Here the context is the same as in Bishop: "the university classroom during specific in-class time." Bishop also noted that the "University's interest is most obvious when student complaints suggest apparent coercion—even when not intended by the professor." The word coercion, to be sure, has echoes of Establishment Clause precedents (particularly around the time of Bishop), but we think that concern is relevant here, too.

Florida's restrictions are, as the State admits, an attempt to force uniformity of thought on students by curtailing the free exchange of ideas in universities—the very environments traditionally regarded as laboratories for expression and truth seeking. Compelling certain beliefs by suppressing "individual thought and expression" is "especially" dangerous in the classroom context, "where the State acts against a background and tradition of thought and experiment that is at the center of our intellectual and philosophic tradition." Unlike in Bishop, where the University was furthering an anti-coercion goal, Florida here asserts the opposite interest—coercing university faculty (and by extension the students) into avoiding a certain set of ideas. Whether Florida is right or wrong about how dangerous these viewpoints are is irrelevant, at least to our inquiry as a court. "No matter how controversial the ideas, allowing the government to set the terms of the debate is poison, not antidote."

Second, we consider the State's interests as an employer. "Courts agree that the school's administration may at least establish the parameters of focus and general subject matter of curriculum." No doubt. And "[t]angential to the authority over its curriculum, there lies some authority over the conduct of teachers in and out of the classroom that significantly bears on the curriculum or that gives the appearance of endorsement by the university." This recognition, we think, significantly mitigates the risk that enforcing the First Amendment in the academic context would leave universities or other government authorities powerless to set overall curricular decisions or exclude speech that veers outside of well-understood parameters—personal tangents irrelevant to the subject matter, conspiracy theories, and the like.

Our own early cases support this same point. In one, we found no constitutional error when a university fired a professor whose speech "seriously impair[ed] … his effectiveness as an instructor." Ferguson v. Thomas (5th Cir. 1970). In another, we rejected a First Amendment challenge to a university's decision to deny tenure when the professor gave students two course credits for effectively taking only one course; awarded most students high grades for little work; made "untrue and misleading public statements"; and demonstrated a lack of "professionalism and maturity." Megill v. Bd. of Regents (5th Cir. 1976). And in Bishop, we again found no First Amendment violation when the university determined that a professor's tangential speech impeded his ability to properly teach physiology. These cases show that even when reserving space for academic freedom, university administrators (and perhaps other government officials too) have a legitimate interest in ensuring that a professor's in-class speech is both "germane" to the curriculum and "professionally competent."

Florida's justifications are not in line with those rationales. Rather than asserting an interest in promoting classroom efficiency or appropriately educating students, Florida says its "sovereign judgment" is that the forbidden viewpoints are "contrary to the State's most cherished ideals." But advancing cherished state ideals is a far cry from ordinary workplace management concerns, much less a legitimate pedagogical interest. What's more, even if many of these ideas are dead wrong, they are not at all irrelevant, at least in certain coursework. Florida itself seems to recognize this fact by allowing discussion of the viewpoints, even while barring their endorsement.

The State does assert one other justification for its law—an "interest in preventing invidious racial discrimination in public education." But as we have already held when considering the companion provision limiting private employers' speech, the Act does no such thing. Discrimination "generally means to treat differently," and "the Act does not regulate differential treatment"—it restricts speech that State political authorities find objectionable.

Preventing professors from positively discussing a viewpoint is not the same as regulating discrimination, which the State can certainly do. A professor who espouses a particular idea does not stand in the same shoes as one who ridicules a student, threatens a student, or targets a student. The Act does not limit (and does not purport to limit) actual discrimination of any kind. It instead assumes that mere exposure to what the State views as the wrong viewpoint is itself a serious harm. But a difference of opinion is not discrimination….

Third, we consider what we called in Bishop the "strong predilection for academic freedom." As we noted there (and here), scholarly freedom is "abundant[ly]" celebrated in First Amendment caselaw, and the "vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Indeed, our "Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection."

Again, Bishop proves the point. True, that court also noted that "pronouncements about academic freedom" in other contexts "cannot be extrapolated to deny schools command of their own courses." To that end, we nod our heads along with Bishop as it recognizes that "academic freedom thrives not only on the independent and uninhibited exchange of ideas among teachers and students, but also, and somewhat inconsistently, on autonomous decisionmaking by the academy itself." Florida's Act, in contrast, removes any decisionmaking by the academy about the topics it bars. And the State's rationale is not limited—it would allow the legislature to block any speech on any topic for any reason….

The broader the restriction, and the more people whose speech it limits, the more scrutiny it must receive. Case-by-case restrictions on a single problematic professor's teaching are the bread and butter of First Amendment cases affirming the curricular authority of universities. But Florida tries to stretch those precedents to fit an entirely new context: not a university disciplining one professor for discrete misconduct, but a state government barring all professors from sharing politically disfavored ideas. {Bishop offers no holding about a state's authority to control curriculum; it protects a university's authority to control curriculum.} …

[D.] This Act's effect on academic freedom is compounded by its lack of clear definitions…. For example, when a professor assigns a reading for class that promotes one of the prohibited concepts, is that professor subjecting the student to "instruction that espouses, promotes, advances, inculcates, or compels such student … to believe" in the concept? What about when a professor hosts a guest speaker who presents only one side of the debate? {The defendants tell us that a professor would not violate the Act by hosting a guest speaker who promotes one of the eight concepts unless that professor endorses the guest's speech. This exacerbates rather than solves the problem, layering imprecision on imprecision.} Or how about a professor who teaches about one of the forbidden concepts using the Socratic method? Would those discussions be "objective"? The parties disagree on every front. And that is to say nothing of the lack of clear language in the individual concepts' definitions. Just to name one, what does "morally superior" encompass, and against whose perspective is it measured? …

And some excerpts from Judge Barbara Lagoa's very long dissent:

[A.] The professor-plaintiffs are state employees, and the speech at issue here occurs during their state-sponsored instruction in a course taken for credit by students enrolled in the State's public universities. According to the majority, a state can restrict a professor's speech so long as the restriction is "reasonable and related to legitimate pedagogical concerns." The majority also tells us that the State may legitimately prohibit a professor from discussing "irrelevant" material, "professionally [in]competent" material, "conspiracy theories, and the like."

The majority reassures that these are "well-understood parameters." But in practice, these "parameters" install a judge-made test that is unworkable and whose "policy-driven approach to the Constitution," reduces the First Amendment to a reflection of judicial preference, regardless of the State's interests in its classroom instruction….

To be clear, the First Amendment protects all viewpoints in the public square, whether they are conventional or controversial. But it does not compel all viewpoints to be worthy of state-sponsored endorsement….

The IFA concerns classroom instruction, allowing professors to discuss discriminatory concepts but not endorse or compel them…. [T]he state's interest as an employer outweighs a professor's interest in teaching his personal views.

[B.] Bishop … ought to end the matter…. Like Bishop, this case involves restrictions on a professor's speech in the classroom. And Bishop already held that, concerning classroom instruction, the State's interests outweigh those of the individual professor….

First, … [i]n Bishop, we noted that the University of Alabama legitimately feared that the professor's speech would have a "coercive effect" on his students: that students would feel compelled to show interest in the professor's religious views to obtain a good grade. The majority says this case is "[u]nlike" Bishop because there "the University was furthering an anti-coercion goal." Here, Florida supposedly "asserts the opposite interest—coercing [its] university faculty" to avoid "a certain set of ideas."

Respectfully, that distinction does not hold up. Bishop addressed coercion directed at students; we expressed no concern about any coercion suffered by a professor. In other words, the professor in Bishop, like the professor-plaintiffs here, was—in the majority's words—"coerc[ed]" to "avoid[] a certain set of ideas." That is why Bishop brought the suit. See Bishop, The majority's attempt to cast Florida's interest as somehow "opposite" of the interests in Bishop simply does not follow.

Second, … [o]n the question of relevance [of the professor's speech to the subject matter], Bishop assumed that the professor's religious views informed his professional viewpoint about exercise physiology. We held that the University could prevent him "from presenting his religious viewpoint during instructional time, even to the extent that it represents his professional opinion about his subject matter." We likewise recognized that the professor expressed "opinions about his work that happen[ed] to have a religious source."

Yet the University could still conclude—consistent with the First Amendment—that the professor's "opinions should not be represented in the courses he teaches at the University." The crux of Bishop is not, as the majority suggests, that religion is irrelevant to science, but that the State, as a public employer, may decide what is taught in its classrooms.

On the question of professional competence, we expressly refused to "gauge" whether the professor's views [in Bishop] were "well-founded." Our decision thus had nothing to do with "professional[] competen[ce]." In any event, a carveout for so-called "professionally incompetent" speech would permit, what the majority elsewhere condemns, "naked prohibition[s] on disfavored" viewpoints. Whether labeled "incompetent" or "unreasonable," the result is the same: the State may determine which viewpoints its employees may endorse during classroom instruction and which they may not.

Third, Bishop considered the First Amendment's "strong predilection for academic freedom as an adjunct of the free speech rights." … [But] Bishop held that a professor's "interest in academic freedom and free speech" does not ultimately "displace the University's interest inside the classroom." We noted that the state could not restrict a professor's speech "when he acts as an independent educator or researcher," but the state could restrict a professor's speech when he acts "as a course instructor."

[C.] In my view, the only legitimate difference here is that Bishop involved restrictions on one professor's speech while this case involves a statute of general application enacted by the Florida legislature. But that difference should not change the outcome of this case.

To start, Bishop did not treat "reasonable[ness]" as a license to rebalance interests in every new case. What made the restrictions "reasonable" was a single, concrete fact: "they appl[ied] only to [] classroom speech." That limitation carried the entire analysis. And when the IFA is read—as Bishop requires—"narrowly because [its restrictions] implicate First Amendment freedoms," its reach is likewise confined to classroom instruction.

Moreover, the Act expressly permits "discussion of the concepts listed," provided that any "training or instruction is given in an objective manner without endorsement of the concepts." It does not "ban" or reject any idea. The IFA bars Florida instructors from coercing students into believing they must embrace a prescribed viewpoint (possibly to receive good grades or preferential treatment in class, for instance). The same balance Bishop struck therefore resolves this case….

The majority nevertheless invokes U.S. v. National Treasury Employees Union (1995), for the proposition that "higher standards are necessary to vindicate broad, prophylactic restrictions on speech of a large number of employees …." … It is undisputed that, unlike Bishop, the IFA applies to the classroom instruction of all professors at public universities in Florida.

But why does that make a difference? NTEU involved speech that was unrelated to a public employee's duties at work. This case, by contrast, concerns speech by Florida's professors while they are performing their instructional duties. And Bishop expressly held that when an individual professor and his employer disagree "about a matter of content in the courses he teaches," the employer "must have the final say in such a dispute." There is little reason to think that balance changes when applied on a broader scale.

[D.] And the State's interests here are substantial in any event. The IFA prohibits instruction that people should be judged by their skin color, that people "should not attempt to treat" other races equally, and that other races "should be discriminated against." … [A] professor's endorsement of a particular viewpoint carries weight that can distort genuine academic exchange. As Bishop explained, a professor's words do not operate in a vacuum; they carry a "coercive effect" because the professor maintains authority over the students' grades.

Consider a professor who says that Hamas's October 7th attack on Israel was "exhilarating"8 and something to be celebrated and encouraged. If the professor made that statement as part of classroom instruction, would a Jewish student feel at liberty to wear his kippah or voice contrary views in the classroom, in a graded paper, or on an exam? Doubtful.

The majority's assurance that "a professor who espouses a particular idea does not stand in the same shoes as one who ridicules a student, threatens a student, or targets a student," does little to account for that reality. Florida acts well within its authority to curb professorial endorsements of that kind within its own classrooms….

[E.] Much of the majority's criticism of this dissent reduces to a supposed distinction between "a state's authority to control curriculum" and "a university's authority to control the curriculum."

But Florida law leaves the majority's university–State distinction with nowhere to stand. Florida's Constitution provides that "[t]here shall be a single state university system," that "[a] board of trustees shall administer each public university," and that "a board of governors shall govern the state university system." Florida lists each of the universities associated with the professor-plaintiffs as a "[s]tate university." And Florida declares that the "boards of trustees [of state universities] are a part of the executive branch of state government." Indeed, in the Eleventh Amendment context, Florida's grip on its public education system is so tight that its Boards of Trustees function as "arm[s] of the state." …

Taken together, these authorities make clear that Florida's public universities speak and act subject to the State's control and administration. Indeed, the IFA functions as the State's directive to its own employees, setting the standards that govern classroom instruction when, as Florida puts it, they teach "the State's curriculum, in the State's classrooms, on the State's time, in return for a State paycheck." And as this Court recognized in Bishop, the public employer has authority "to reasonably control the content of its curriculum, particularly that content imparted during class time."

{The Supreme Court has distinguished between a state's "attempts to direct the content of speech at private universities," where "[o]bvious First Amendment problems would arise," and a state's "attempts to direct the content of speech at public educational institutions," where "complicated First Amendment issues are presented because government is simultaneously both speaker and regulator." Univ. of Pennsylvania v. EEOC (1990).} …

[F.] The majority's rule, meant to avoid what it believes is the State's improper viewpoint discrimination, nonetheless endorses its own form of viewpoint discrimination. Of course, some amount of viewpoint discrimination is necessary to ensure the effective operation of any academic institution. The majority acknowledges as much, retaining vague carveouts—like "reasonable[ness]"—to distinguish between prohibitions that are and are not permissible under the First Amendment. The majority emphasizes that the boundary lines are "well-understood." It assures that "conspiracy theories" and "the like" will not be tolerated.

But these exceptions do not eliminate viewpoint discrimination. {Despite its assurance that it declines to "make any judgment about the value of the[se] ideas," the majority does exactly that. By its own account, it believes "universities or other government authorities" may "exclude speech that veers outside of well-understood parameters." But what does "veer outside of well-understood parameters" mean and why must it be this majority who decides?

Those questions go unanswered. Rather, the majority simultaneously labels certain categories of speech as properly excludable while insisting that "it is not our place" to judge the value of contested viewpoints.}

Put differently, the majority recognizes that someone must set the limits of what can be taught at public universities. And through its carveouts, the majority shifts that decision-making authority from the people to federal judges.

The test now is: Does the presiding judge believe that the professor's viewpoint is within the range of permissible views? … The majority's rule still allows "naked prohibition[s] on disfavored speech," but authorizes that viewpoint discrimination under exceptions created, interpreted, and enforced by the judiciary.

Note that my students and I filed an amicus brief on behalf of the Academic Freedom Alliance, supporting the challenge to the law.

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Because of the significance of this new rule change, I've written an article with Utah County prosecutor Ryan McBride explaining the rationale behind it and how it will operate in practice. The article makes four arguments in favor of the new rule.

First, because most sex crimes are committed by perpetrators against victims in private places, admitting evidence of similar crimes is often critical to a successful prosecution of those perpetrators. In light of frequently conflicting testimony from victims and defendants in sexual assault cases, admitting similar crimes evidence serves to arm the jury with more information from which to determine the truth and reach an accurate verdict. When the defendant claims to have been unjustly accused, allowing evidence of other acts of misconduct often puts an entirely different light on the matter. Combining direct evidence of guilt with evidence of the defendant's past crimes may thus eliminate  reasonable doubt in a case that would otherwise be inconclusive. As Utah Senator Orrin Hatch concluded in co-sponsoring legislation adding Rule 413 to the Federal Rules of Evidence, the public interest in admitting evidence "that will illuminate the credibility of the charge and any denial by the defense is truly compelling." Letter from Sen. Orrin G. Hatch, Rep. Susan Molinari, and Rep. John Kyl to Chief Justice William H. Rehnquist 2 (Oct. 11, 1994).

Second, historically Utah law recognized a similar crimes exception, only for that precedent to be obscured or ignored by what appears to have been sexist assumptions about the unreliability of women reporting sexual assaults. The history begins just a few years after Utah joined the Union in 1896. Four years later, in 1900, the Utah Supreme Court first addressed whether evidence of prior acts of sexual intercourse between the accused and the victim was admissible in a prosecution for statutory rape. State v. Hilberg, 61 P. 215 (Utah 1900), while noting the general prohibition against propensity evidence, also recognized that prior acts of intercourse between the parties (but not subsequent acts) were admissible to show the accused committed the crime charged. The Utah Supreme Court reached an identical conclusion the following year in State v. Neel, 65 P. 494 (Utah 1901), holding that evidence of prior sexual acts between parties was admissible to explain the acts in question.

A few years later, however, in 1909, the court appeared to depart from the rationale of Hilberg and Neel. In State v. Williams, 103 P. 250 (Utah 1909), a seventy-year-old man had been convicted of sexual assault on a ten-year-old girl and appealed. In overturning the conviction, the court held that a general prohibition against propensity evidence controlled. The court quoted Hilberg's language about previous acts of "improper familiarity" making it "more probable" that the charged crime was committed but narrowed the application of this language to prior sexual conduct between the defendant and the victim of the charged offense. The court reasoned that the authorities "uniformly" hold that crimes "wholly disconnected from the crime charged on some person other than the one mentioned in the information or indictment is never admissible." Id.

Williams clearly misstated the state of the law in this country. See, e.g., 3 Joel Prentiss Bishop, New Criminal Procedure § 970 at 1846 (2d ed. 1913); § 970 at 46 (1st ed. 1880) (explaining that in England such sexual predisposition evidence was not admissible, but "(t)he contrary to this, believed to be the better law, has been adjudged with us"). The court's opinion curiously offered no reason for distinguishing the defendant's prior sexual conduct with the victim of the charged offense from that with other victims. Nor did Williams attempt to reconcile its holding with Hilberg's holding that prior sexual acts with the victim of a charged offense make subsequent sexual misconduct "more probable."

The Williams decision seems so odd that perhaps its true rationale is reflected in its reference to the dictum from Lord Hale that rape of a woman "'is an accusation easily made, hard to be proved, and still harder to be defended by one ever so innocent."' Williams, 103 P. at 254 (quoting 3 Greenleaf Ev. § 212). This claim about false rape claims has now been thoroughly discredited; it reflects sexist notions about the untruthfulness of women who have come forward to report being sexually assaulted, as many commentators have explained. See, e.g., Vivian Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 10–12 (1977) (noting that Hale's admonition singles out rape for unique treatment and proposing to treat rape like other crimes). But the unfortunate effect of the poorly reasoned Williams decision was to overshadow the court's earlier holdings to the contrary—as I have discussed in an earlier article. Utah's new rule discards the discredited approach of the Williams decision and returns to the better-reasoned approach contained in Hilberg and Neel.

Third, a majority of jurisdictions in the United States now often allow the admission of similar crimes evidence in sexual assault cases. In a 1986 review of the issues, the U.S. Department of Justice concluded that  "free use of propensity evidence in prosecutions of sex crimes is widespread." See generally Office of Legal Policy, U.S. Dep't of Justice, Report to the Attorney General: The Admission of Criminal Histories at Trial at 10 (Aug. 14, 1986). While exact quantification of case law in multiple jurisdictions is always difficult, a fifty-state survey by Professor Thomas J. Reed in 1993 found that twenty-nine states "admit sexual misconduct evidence via the common-law lustful disposition rule." Thomas J. Reed, Reading Gaol Revisited: Admission of Uncharged Misconduct Evidence in Sex Offender Cases, 21 Am. J. Crim. L. 127, 188 & n.340 (1993) (listing Utah as among the twenty-nine, based on Neel, discussed earlier). That rule, in short, is that "the prosecution in its case in chief could prove the defendant's lustful disposition to commit sex crimes by proof of prior or later instances of sexual misconduct with the same victim or a different victim." Even in states that did not follow a lustful disposition approach but instead applied Rule 404(b), the survey found that "the courts generally grant the prosecution great leeway to introduce uncharged sexual misconduct" evidence even when the other purpose besides propensity "is not truly an issue in the case."

And, most important, in 1994, Congress simply followed this well-trodden path in adding a similar crimes rule into the Federal Rules of Evidence by adopting Rule 413. The federal rule was essentially a codification of the common law lustful disposition rule. See Basyle J. Tchividjian, Predators and Propensity: The Proper Approach for Determining the Admissibility of Prior Bad Acts Evidence in Child Sexual Abuse Prosecutions, 39 Am. J. Crim. L. 327, 341 (2012). As a result of the amendment to the Federal Rules of Evidence, the admission of propensity evidence in sexual assault cases has now expanded. The  current, i.e., 2019, Wigmore treatise on evidence notes the enactment of Rule 413 and  concludes that "recent developments in evidence law have rendered such evidence [i.e., evidence of uncharged misconduct in prosecutions for sex crimes,] more broadly admissible in many jurisdictions…." David P. Leonard, The New Wigmore: A Treatise on Evidence; Evidence of Other Misconduct and Similar Events § 8.5.3 (2d ed. 2019). The treatise hastened to emphasize, in addition, that even apart from specific rules of evidence, "courts have long approved admission of such evidence in sexual crime and child molestation cases."

Fourth, my article explains how the language in the new Rule 404(d) will operate, drawing on other parallel state and federal rules that have been in operation for some time. Courts around the country have had difficulty in deciding whether something like the lustful  disposition rule survives Rule 404(b) or is abolished by it. See Reed at 186–88 (discussing conflicting interpretations in various state courts). The Utah Legislature has now ended any further possible confusion by simply adopting new Rule 404(d), which directly answers that question and permits similar sexual assault evidence to be admitted against a defendant for propensity purposes.

While new Utah Rule 404(d) makes propensity evidence presumptively admissible, it is important to note that the rule does not make it automatically admissible in every case.  Like other parts of Rule 404, the trial court must also apply Rule 403, which requires the exclusion of evidence in rare cases where the probative value of evidence is "substantially outweighed" by prejudicial effect.

In sum, as the article explains at greater length, the Utah Legislature has acted wisely in adopting new Evidence Rule 404(d), creating a presumption of admissibility for similar crimes evidence in sexual assault cases. In sexual assault cases where propensity evidence is available, prosecutors should seek to introduce that evidence, which will give Utah's juries a fuller appreciation of all the circumstances. And the minority of states that still preclude propensity evidence in sexual assault cases should consider following the increasingly mainstream approach reflected in Utah's new rule and the Federal Rules of Evidence.

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