Monthly Archives: February 2022

State attorney Libby Bakalar cites a statute governing the appeal process for election certifications and recounts during a press teleconference at the Division of Elections office in downtown Juneau on Nov. 26, 2018. A federal judge ruled that Gov. Mike Dunleavy violated her First Amendment rights when he fired her on the day he was sworn into office. (Jeremy Hsieh/KTOO)

Recently, a federal district court judge ruled that Gov. Mike Dunleavy violated the First Amendment rights of a Juneau attorney he fired on the day he was sworn into office in December of 2018.

Rashah McChesney sat down with former assistant attorney general Libby Bakalar to talk about what the ruling means.

The following transcript has been edited for length and clarity.

Rashah McChesney: This is kind of a complex timeline, so lets walk through it. You have this blog, One Hot Mess, for several years. At one point, you start writing about former President Trump, and another attorney and the state complains. The state investigates you and your blog and finds no wrongdoing.

Then Gov. Dunleavy gets elected, and he and his former chief of staff, Tuckerman Babcock, send out these demands for resignations to 800-something employees in the state including you. Something thats recently deemed unconstitutional. You resign. Gov. Dunleavy gets sworn in at noon on Dec. 3, and you find out 20 minutes later that youve been fired.

Thats more than three years fighting for this. What was that process like?

Libby Bakalar: You know, it was really slow and grueling, to be honest. I mean, it wasnt like every single day, something different was happening in the case or anything. Its just, its a long time to be in limbo with something like this. You know, I think I wrote about this in my blog it just a takes a very long time to prove this kind of point. When I filed this case, I was like, Ill be surprised if this is resolved within Dunleavys first term of office. So I fully expected it to take pretty much as long as it took. Its just part of being a litigant.

Rashah McChesney: One of the reasons that Tuckerman Babcock said that he did it was because he didnt like your resignation letter. Im wondering if you could tell me a little bit about that letter and sort of describe what you were thinking when you wrote it.

Libby Bakalar: Well, so the attorney general at the time, Jahna Lindemuth, gave everybody a template to write the resignation letters on. So every attorney who submitted the resignation letter used the same template. I may have added something like, Im doing this under duress, or Im doing it because, you know, Mr. Babcock said I was going to be terminated if I didnt do it. I kind of wanted to make it clear that my resignation wasnt voluntary. But that language about the resignation being involuntary was in the template. And as Judge [John] Sedwick said, another attorney who used the exact same language that resignation letter wasnt accepted. So that was just something that I think that we found completely not credible. And I think when you read the letter, you can see its completely professional and completely anodyne. So, you know, that was clearly pretextual and Sedwick saw right through that.

Rashah McChesney: When you submitted that resignation letter did you expect that they were going to accept it and that you were going to lose your job?

I think in the back of my mind, I was worried about losing my job, but I knew that what I was doing was legal. Thats the thing, right? I knew my work was good. I knew my relationships with my clients and colleagues were good. My work was beyond reproach, right? And I knew I had the constitutional right to speak on these matters. And so my mistake was assuming that these folks were going to comply with the law, right? And I think I must have thought that because, you know, when they called me and told me about this, that I was fired, I was like, I picked up the phone, and I said, Are you calling and telling me Youre firing me? And like, yeah, sorry, basically. So it kind of, you know, wasnt like this huge shock, I guess. But I think deep down, I was like, they couldnt really do this, because this is against the law, right? And they did it anyway. And were, you know, were a firm of lawyers. So I thought, Theres no way that these lawyers are going to carry out this illegal order, from Tuckerman Babcock, and I was wrong about that. I was wrong about that. So I think I was surprised on some level.

Rashah McChesney: This is a little bit of a rabbit hole, but there was another lawsuit against the governors administration, for demanding those resignations. These psychiatrists from Alaska Psychiatric Institute sued over the same thing, over being asked to resign.

Libby Bakalar: Right. The ACLU filed a case on their behalf of at the same time that they filed my case. And in that case, the psychiatrist plaintiffs did not submit resignation letters at all, and because of that, the judge had a different analysis. Theres these two lines of free speech cases like this. And one of them has to do with patronage schemes, and one of them has to do with policymaking and disruption at work. And the former line of cases is what the psychiatrist case was about, because they did not submit those resignation letters. And so the judge was able to find in that case, that the entire scheme itself, the resignation letter scheme itself, the very act of submitting of was essentially an unconstitutional patronage.

Rashah McChesney: So, they were just on some kind of parallel track this whole time?

Libby Bakalar: The judge declined to consolidate those two cases early on, the ACLU asked to have them consolidated and for a number of reasons, he denied that motion. And I think when you see the two orders, in those two cases, you can kind of see why. There are a lot of different issues. Obviously the psychiatrists, they didnt have this blog. There wasnt this whole question of whether they were policymakers there wasnt, there was just kind of some different issues going on, different fact patterns.

So yeah, they were similar in some ways. But in a way, it was the best possible outcome, in my opinion that these two cases were decided separately and on different grounds. Because what the judge did, essentially within one case, he invalidated the resignation demand scheme on its face. And in my case, he invalidated it as applied to me. Its sort of a double whammy. I think in the end, it was good because we got those two separate rulings that essentially validated the illegalality of this entire scheme, both as it was conceived and as it was applied.

Rashah McChesney: Now that its been ruled that they fired you unconstitutionally how do they pay for it?

Libby Bakalar: So thats yeah, thats the question. Its either gonna be through a settlement or a jury trial. And so this is kind of like the analogy would be the sentencing hearing, kind of. After someones convicted, right, theres a whole other sentencing phase. Its kind of like that. So the judge basically, you know, quote, unquote, convicted them on this wrongdoing. And now theres the quote, unquote, penalty phase, thats more or less the analogy in the civil setting. So its over in the sense that the merits of the case have been decided, I mean, they could always appeal for all I know, they might appeal. And that could change the picture somewhat. But we have this ruling that says they broke the law, right? So now its like, well, how do you remedy that? And thats an open question.

Rashah McChesney: There could still be a fair amount of wrangling.

Libby Bakalar: Theres a fair amount of loose ends. Its not just, like, completely over. Its a win there. Its a pretty much an unqualified win, in my opinion, just because for me, just psychologically, I just, this whole time, all I ever wanted was for a judge to say, Yes, this was unconstitutional. Yes, this was illegal. And that finally happened. And so for me, its over in my mind on that front. In terms of my feelings of vindication on the merits of what they did, how theyre going to pay for it, whats going to happen in the future, how this will affect state employees. What I really care about is that this never happened to another state employee ever again. I never want to see a mass resignation scheme. I never want to see a partially exempt, non-unionized state employee some geologist, biologist, architect, you know be forced to resign their job every four years. Thats just insane.

Rashah McChesney: Is this case as simple as a free speech test? And should every state employee go out now and write whatever they want about the president on a personal blog and feel reasonably certain that they wont be fired?

Libby Bakalar: I dont know. I definitely would hesitate to answer that question in the affirmative. I dont think thats true. I think there is a fact-based analysis of like, what positions are really policymaking positions for which political affiliation is actually a job requirement? I dont think the court order really answers that question in any kind of uniform way. It certainly doesnt say every non-unionized state employee can say whatever they want, whenever they want. Like, thats not what it says. But I think what it does do is it sends a message that, you know, at least in some cases, you know, non unionized state employees do have free speech rights. Its not a good faith constitutional use of personnel resources, to demand resignations, and to make personnel decisions, based strictly on peoples off-duty speech, right?

But there again, theres complicated case law, and these complicated tests and balancing tests and applying all these factors and things. So its not as cut and dried as now, you know, every non-unionized state employee, every partially exempt state employee can say and do whatever they want. No, thats not what this order says. But I think it does send a message that there are still, there are limits, you know, to what the government can do to you. And we do have, we still have democracy, at least nominally. And we still have free speech rights in this country. And even if you work for the state, and thats, thats been established now. And I think it was established before it should have been known before. But now its been reiterated in no uncertain terms.

So I think future administrations are going to think twice before they try anything like this ever again. So functionally, I think its going to be there will be much more deliberation about that transition. About who is told to leave their job, and who was forced to resign their job. And under what conditions, right? I think I will have set some precedent, these two cases will have set some precedent in that respect.

Rashah McChesney: Right, because this is something that happens during every governors administration, generally, is that they asked for the resignation, but usually of political appointees, right?

Libby Bakalar: Usually commissioner-level and director-level people, deputy director levels people who are quite comfortably within that policymaking framework, right. Not typically ever, you know, a Fish and Game biologist, or, you know, city water, a state water inspector or something. I mean, jobs that have absolutely no policymaking, you cant even make a good faith argument that these are policymaking jobs. But, you know, that was all based on norms before, and this administration shattered those norms.

Just because it had never been done before. And the reason it had never been done before was because you would never even consider asking non policymaking employees to resign. And yet, they did do that as some sort of, quote, bold new thing or something to quote Tuckerman Babcock. But what it was, it was a flex, you know. It was a flex. It was an intimidation tactic. It worked. You know, for the past four years, three-and-a-half years people have been absolutely terrified in this administration.

I hear from state employees every day, how scared they are working for these people. And with good reason. They have shown absolutely no compunction about violating the law and penalizing people for quote-unquote disloyalty.

So there was like, a few different kind of iterations of this, right? And all of it just sent this general message of intimidation. And the idea that youre, you know, the administration is lurking on your social media, and theyre just waiting to pounce on you for disloyalty. I mean, thats a terrible and completely undemocratic way to exist as a government employee. And it just made me so angry. And I think thats what fueled this entire thing for me, is that I just wanted to do something impactful for the entire state employee workforce.

Rashah McChesney: In that other case that we were talking about earlier were a couple of doctors sued over this resignation letter requirement. The judge ruled that Tuckerman Babcock and and Governor Dunleavy dont have qualified immunity in that situation. Does that apply to your case as well?

Libby Bakalar: No, it doesnt, and I didnt expect it to either. Qualified immunity is a very hard thing to lose. You have to really do something bonkers to lose it. And I was actually surprised in the psychiatrists case to see Dunleavy and Babcock stripped of qualified immunity, because its functions, in practice, like absolute immunity, it really does.

Ive never seen it happen where a government defendant in a civil case like this loses qualified immunity. Its just unusual, its very unusual. Because if government workers were able to be held personally liable in their jobs, no one would ever work for the government, right? So there has to be some form of protection there.

But I think what the judge was saying is that they went so far with this, this was so out of the realm of reason to do this, that they were personally liable for it. I think, in a way, I think qualified immunity is good for government workers. In another sense, it also disincentivizes good faith conduct on the part of people in power in government, because unless its their personal assets on the line in these types of situations somebody is acting in bad faith theres no incentive to obey the law.

Take my case, for example. Ive been gone from the Department of Law for three-and-a-half years. They got what they wanted, they got me gone, Im gone. Im not there, right? Theyve gone on. And now like the damages phase is, you know, the damages go to the state of Alaska, not to them. So they lost nothing. So when you lose qualified immunity, at least that sends the message of you cant just do whatever you want. At some point, theres going to be a point at which you are going to have to worry about your personal assets in these things. And you cant just disobey the law, and expect to completely get away with it every time and have the State of Alaska foot the bill in the end.

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After winning, Juneau attorney reflects on her years-long First Amendment case - Alaska Public Media News

The U.S. Court of Appeals for the Seventh Circuit has ruled that an employees criticism of their supervisor for alleged misconduct is not protected under the First Amendment.

In this case, the plaintiff was employed as a customer service representative in the clerk-treasurers office in Bargersville, Indiana. The plaintiffs duties included collecting bills and setting up payment plans for utility customers. In late 2017, the plaintiff found that a wealthy resident of the area had failed to make utility payments and had the customers services disconnected.

Soon after, the decision was countermanded by the clerk-treasurer who had services reconnected after business hours. The plaintiff felt that the clerk-treasurers decision was influenced because the resident was a prominent figure in the area and because the two were business partners.

The plaintiff confronted the clerk-treasurer over the matter and stated that she believed all customers should receive uniform treatment no matter their wealth and status. Soon afterward, her duties were shifted away from handling disconnections in favor of more general customer service functions. Approximately five months later, the plaintiff made a mistake in handling fee collections that resulted in the town losing the opportunity to collect approximately $1,000 in fees. The clerk-treasurer fired the plaintiff soon afterward.

The plaintiff filed a lawsuit against both the town and the clerk-treasurer, alleging that she was fired in retaliation for exercising her right to free speech under the First Amendment by confronting the clerk-treasurer over the decision to reconnect the prominent residents utilities. The trial court acknowledged that the first amendment protects the right of a public employee to, in particular circumstances, speak of matters of concern as a citizen.

However, the court also found that in the time in which the criticism took place, the plaintiffs job duties included handling utility disconnections. As a result, criticizing the clerk-treasurer for their handling of utility disconnections amounted to a complaint within the plaintiffs area of responsibility and was not protected by the constitution.

Further, the court noted that even if the complaint was constitutionally protected, there was still insufficient evidence to show that the issue was a motivating factor in the dismissal. There was a five-month gap between the plaintiffs complaint and the termination, which the court noted was too distant to establish a causal link between the incidents.

In response, the plaintiff argues that the timeframe should be measured from the point of the criticism to the point in which the clerk-treasurer decided to fire her, which would reduce the timeframe to only three months. However, the court found that the relevant measure to consider in judging whether or not the timing is suspicious would be between the protected speech and the actual adverse employment action, not the decision process preceding it. Further, the court noted, based on court precedent, even the three-month time frame would not be enough.

This case demonstrates the importance of properly documenting employee misconduct, including performance reviews. These can provide significant protection against claims of wrongdoing in cases where adverse action is necessary.

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Seventh Circuit Finds the First Amendment Did not Protect Employees Complaints About Their Supervisor - Pre-Employ.com

A councilwoman in OFallon, Missouri, has been impeached and removed after raising questions about the municipalitys now former police chief.

Katie Gatewood, a former law enforcement officer, had learned that the man hired as chief in 2020 had been the subject of controversy at his previous post in Conroe, Texas. According to a report by officers in the Texas Rangers, in 2017, Philip Dupuis responded to a domestic violence call that involved a fellow officer who was one of his friends. According to another officer who responded to the scene, Dupuis seemed more concerned with what would happen to his friend than about the victim.

Gatewoods interest in determining what really happened in Conroe has now led to her ouster. Her attorney, Dave Roland of the Freedom Center of Missouri, said Gatewood made several public records requests and phone calls to learn more information about Dupuis actions. Her colleagues accused her of violating city ordinances by making those inquiries and, last week, voted to impeach and remove her from office.

Those actions have Roland concerned. Gatewood, he said, merely exercised her right to free speech.

It raises incredibly severe First Amendment consequences for the voters, as well as for the elected officials who are being threatened with removal from office, he told St. Louis on the Air.

Roland filed a lawsuit against the city on Gatewoods behalf three days before she was ousted by the council. In it, he argues that the councils actions were retaliatory and that the disciplinary panel against her was biased and that these actions violated her constitutional rights.

Listen: OFallon councilwomans removal raises First Amendment concerns

They said, essentially, that it was illegal for her to ask those questions under city law, Roland said.

U.S. District Judge Audrey Fleissig declined to intervene before the impeachment vote. But Roland is hopeful that she will now consider the matter ripe for judicial review. On Wednesdays show, Roland said he plans to approach the federal judge with an updated complaint within a month.

As for Gatewood, her term on the council ends in a little over a year.

We would love to see Katie restored to the council, said Roland, but even if she ultimately is not, we intend to get a ruling as to whether the removal was unconstitutional.

Dupuis resigned from the chiefs job in OFallon last June.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Ousted O'Fallon councilwoman will continue to fight - St. Louis Public Radio

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David Stout, a junior at Plainwell High School in Michigan, was suspended for three days last fall as punishment for expressing his religious beliefs in a private conversation with a friend. When his parents learned about his suspension, and the details behind the schools action, they enlisted the assistance of the Great Lakes Justice Center.

After reviewing the background, which extends back to April 2021, the attorneys took on the case and filed suit last Thursday, claiming that the schools principal, assistant principal, and band director all violated Stouts First Amendment right to express his beliefs:

A foundational core of our Constitutional Republic is that the State cannot punish its citizens for engaging in speech that is protected by the First Amendment.

The 29-page complaint provided the court with all the details. Last April, Stout, a self-proclaimed Christian who is active as a football player and band leader at the school, responded to a question texted to him by a Christian friend about the Bibles teaching on homosexuality.

From the complaint:

On or about April 28, 2021, Plaintiff [Stout], using his own smartphone, participated in a series of private group chat/text sessions with these friends from school.

At one point during this group session, one of these children asked to speak with Plaintiff in a private text.

Once Plaintiff began texting with this other child, Plaintiff was surprised that this friend, who was not homosexual, asked Plaintiffs opinions and beliefs about this other childs friends being gay.

Plaintiff stated that the Bible teaches that homosexual conduct is a sin and in the Christian context that God created only two biological genders man and woman.

Plaintiff stated that while homosexual conduct is a sin, however, everyone is a sinner due to freewill choices, and he would pray for them to repent and follow Jesus. He also shared that he would extend love toward them because God commands it, as Jesus died on the cross for them and extends His love toward them, and all they have to do is accept it.

Plaintiff continued that the Bible says at the end of days all will know the truth, every knee will bow, and every tongue confess that Jesus is Lord.

Stouts response offended his friend, and the text conversation ended.

However, the next day Stout reached out to his friend in an attempt at reconciliation:

Although Plaintiff felt his friend was discriminatory, selfish, and unkind, Plaintiff did not want to lose his friendship. Thus, on April 29, 2021, Plaintiff contacted this child for another private chat/text session.

Plaintiff began by expressing that he still held his Christian opinions, but he respected his friends opinions as well.

Further, Plaintiff did not want to end his friendship with this other student because of a disagreement, and he wanted to respect everyones opinions even if they disagreed so they could remain friends.

At no time was this conversation made public. It was private, occurred off campus, and was well within Stouts First Amendment rights. Said the complaint: Plaintiff never posted or otherwise distributed any of the content of this private chat/text to any public social media site, to the school, to other band members, to the student body, or to any other person.

When school officials learned about the conversation (probably from Stouts friend), they called Stout in for several conversations, which ultimately led to his being suspended for three days in October.

Following the filing of the complaint on Thursday, Stouts lawyer, David Kallman, issued a statement to the media:

My clients religious speech and beliefs should be treated with tolerance and respect. Public schools may not violate the Constitution and enforce a hecklers veto of student speech.

Nothing David did caused any disruption or problem at the school. He has the right to express his opinion in accordance with his sincerely held religious beliefs, without vilification or punishment from the government for holding to those beliefs.

Kallman expanded on the case:

David was suspended for three days last fall for stating his Christian beliefs in a private text conversation and in a hallway at school. He is also being punished for not policing and reporting the inappropriate jokes of fellow students.

He was instructed to stop posting his religious comments on all his social media platforms, and was disciplined for the offensive behavior of some other students; something he was unaware of and did not participate in.

David is a good student with a clean record. Nothing he did caused a disruption or any problem at the school. He has the right to express his opinion in accordance with his religious beliefs without vilification or punishment from the government.

Kallmans lawsuit is asking the court to declare the schools principal, assistant principal, and band directors actions unconstitutional and that [they] violated [Stouts] fundamental constitutional rights, and to find that [they] acted outside the scope of their authority.

The suit also demands that the school expunge Stouts school records of any mention of the incident, pay all of his attorneys fees and court costs, and grant such other and further relief as is just and appropriate.

That would include exacting promises from the schools officials not to punish Stout as retribution during his remaining year for bringing them to task for their unconscionable, illegal, and unconstitutional acts.

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Student Sues High School Principal for Violating His First Amendment Rights to Free Speech and Religion | - The Paradise News

The group known as Oath Keepers is a loose network of organizations made up of former military, police, fire, and first responders people who have taken oaths at some point in their lives to defend the Republic.

Rep. David Eastman is a member of the Oath Keepers, and for this, he is being hunted and hounded by Alaska House Democrats.

The Democrat majority members have for weeks been acting to remove Eastman from all of his committee assignments because of his association with the group, whose leaders await trial for their activities leading up to and on Jan. 6, 2021 in the nations capital.

The charges against Yale University graduate and Oath Keeper founder Elmer Stewart Rhodes are serious, but as of yet unproven, as his trial does not begin until April 19.

The Department of Justice charges say Oath Keeper defendants were not just engaged in mere disorderly conduct on Jan. 6 at the U.S. Capitol, but that they organized militarily well in advance to stop the peaceful transfer of power from President Donald Trump to President Joe Biden.

On Wednesday, Rhodes is scheduled to appear before the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol. The committee, formed on a party-line vote on July 1, 2021, has been subpoenaing citizens and documents ever since to testify about what they knew and in what manner they participated in the Jan. 6 surge into the Capitol. The committee has even subpoenaed numerous Trump Administration members and advisers, and people associated with other patriotic nonprofit groups, including Women For America First and Moms for America.

Among the dozens of Alaskans who also went to Washington, D.C. on Jan. 6, 2021 to attend a Trump rally and participate in a protest was Rep. Eastman of Wasilla, who stayed a good distance from the halls of Congress the entire time.

For months, socialist organizers in Alaska political circles and their Democrat surrogates in the House have been on Eastmans trail, to try to get him removed from office altogether, due to his membership in Oath Keepers.

But there just are not enough votes for him to be expelled by the House, and Plan B is to redline him from all of his committees.

That failed on Monday because there were evidently not enough votes, but the Democrats plan to take the matter up again when Rep. Sara Rasmussen returns. Although she is a registered Republican, the Democrats are counting on her vote to punish Eastman, who is somewhat of his own caucus most of the time. Rasmussen is said to be out due to quarantine and votes with the Democrat majority frequently.

If the House does act against Eastman, it will set a precedent for the Legislature to punish members for their associations with various legally recognized groups groups such as the Democrat Socialists, or Black Lives Matter.

Oath Keepers is not only a legal organization, it enjoys protection by the Internal Revenue Service as a charitable, non-taxable entity. The IRS recognizes several Oath Keeper affiliates as 501(c) groups, including:

But politically motivated groups like the Democratic Party and Southern Poverty Law Center view Oath Keepers as one of the largest far-right antigovernment groups in the U.S. today.

In a court of law, what a nonprofit political group calls another nonprofit political group is one thing, but when a group is protected by the federal government as a charitable group, its quite another.

The Alaska House Committee on Committees was planning to meet at noon Tuesday to try again to remove Eastman from committees on its roster, but abruptly canceled its meeting, which had not even been advertised on the legislative calendar. That means its likely no floor action will be taken against Eastman on Wednesday.

The dispute is spinning the wheels of the House of Representatives, which is on Day 15 of its current 90- to 120-day session. Although Speaker Louise Stutes said this session was going to be more harmonious, she chairs the Committee on Committees, and she has verbally sneered at those defending Eastman.

Democrat Majority Leader Rep. Chris Tuck on the House floor on Monday said that some rights are simply not allowed. Tuck, who has not served in the military but has sworn an oath as a lawmaker, said there are distinct curbs on peoples free speech rights.

We really dont have the right to do whatever you want. It really is the right to do whats best, Tuck said.

But Rep. Kevin McCabe said that military men and women, when they take an oath, its for life, to defend against enemies foreign and domestic.

Notice there is no expiration on that oath, Madam Speaker, he said, saying that would be important for people to remember in coming days.

Rep. Ben Carpenter, also a veteran, spoke to the importance of defending the First Amendment rights of all Americans.

One of the lessons I learned in the military, after I took my oath to defend this nation, is that the Marxist that sits in the tank next to me has the same rights that I do, Carpenter said. First among those are the right to free speech and to freely associate with the organizations that I choose.

Carpenter continued: If you can remove somebody from a position because you dont like what they say or what they think, its only a matter of time before somebody else gets removed, for some other topic.

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Alaska House Democrats are trying to take away First Amendment rights of Republican members, starting with Rep. David Eastman - Must Read Alaska

Humans of all political persuasions have a tendency to lose sight of why taboos exist and to enforce them rigidly rather than thoughtfully. In two recent cases, American educators chose quality instructional material for their students, only to be stymied by illiberal authority figures who apparently believe that, whenever objectionable words are mentioned, context doesnt matter.

The first example comes from red America: School-board officials in McMinn County, Tennessee, voted to remove Maus, Art Spiegelmans Pulitzer Prizewinning graphic novel about Holocaust survivors, from its eighth-grade curriculum, largely because of eight curse words, including goddamn, in its text. School-board members felt that it was wrong to assign reading with words their students arent allowed to say. I understand that on TV and maybe at home these kids hear worse, school-board member Tony Allman said, according to a transcript of a meeting last month, but we are talking about things that if a student went down the hallway and said this, our disciplinary policy says they can be disciplined, and rightfully so.

Another board member, Jonathan Pierce, acknowledged using crude language himself, but asked, Can I lay that in front of a child and say read it, or this is part of your reading assignment?

Conor Friedersdorf: Banning bad ideas wont make them go away

The second example comes from blue America: Administrators at the University of Illinois at Chicago suspended, investigated, and punished Jason Kilborn, a law professor, over an exam question meant to test students knowledge of civil procedure in a race- and gender-discrimination lawsuit. The relevant material is quoted verbatim in a complaint the professor filed against the university:

One question asked students to analyze a piece of evidence, an account from a former manager that the manager had quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a n and b (profane expressions for African Americans and women) and vowed to get rid of her.

The complaint goes on to clarify, The question appeared exactly like this, with respectfully expurgated references to the racial and gender slurs. All of Kilborns classes were canceled. He was barred from campus and from interacting with anyone in the university community.

In the culture wars, theres a lot of debate about whether the red tribe or the blue tribe poses the greater threat to liberal norms in education. But is that the question we should be asking? The Tennessee school-board officials and the Chicago law-school administrators made the same mistake: Both acted to bolster preexisting community taboos against nasty words, but in doing so, they failed to distinguish between using nasty words in order to wound, profane, or disparage, and mentioning nasty words in order to teach about the problems they represent.

That differenceknown as the use-mention distinction to educators still brave enough to teach itis a key bulwark against anti-intellectual attacks on art, literature, philosophy, and more.

These recent acts of illiberal language policingcoinciding with a racial reckoning on the left and a backlash against its excesses on the rightthreatens to degrade the education of all young people. Disregard for context or intent will serve students poorly in a world where survivors of genocide do curse while conveying their experiences and where lawyers do grapple with fact patterns that include racial slurs. And ignoring the use-mention distinctionor acculturating students to reject itvests the mere mention of nasty language with more power to disconcert or wound, not less. In the University of Illinois controversy, Kilborn reported that he used that same exam question for 10 years without incident. Norms change over time, of course. But the newer norms seem to invite students to evaluate course content in superficial terms.

Whats more, the mere absence of nasty words would not even protect anyone from reprehensible ideas. Hateful sentiments worthy of our scorn can be conveyed via non-taboo diction. Thats why we should teach young people to direct their ire toward objectionable intent.

John McWhorter: Even trigger warning is now off-limits

The law professors punishment violates core values of higher education. As his lawsuit puts it, The University of Illinois Systems Guiding Principles at the very beginning explicitly ensure an unyielding allegiance to freedom of speech even controversial, contentious, and unpopular speech and pledge that protected speech cannot be prohibited or punished. Yet they transgressed against both academic freedom and the First Amendment.

School boards are legally entitled to set curriculum, and all public schools draw arbitrary lines around what is age-appropriate. Yet in the Tennessee district, the effect of stripping the curriculum of curse words that are already ubiquitous in American culture was to deprive eighth graders of an encounter with a powerful graphic novel. The school boards move prompted a host of social-media testimonials to the power of Spiegelmans book. I read Maus when I was nine years old and it changed my life, the writer Jane Coaston of The New York Times recalled. It made me a better person, a more empathetic and compassionate person.

The McMinn County School Board might well be depriving multiple students of similarly edifying or transformative experiences, and its difficult to imagine how this censoriousnesscouched as protecting kids from foul language they likely have heard many timeswould help any students.

Decide for yourself about which of these illiberal actions is more worrisome. So long as significant factions on the right and left fail to embrace core liberal insights and values about language in education, students will be ill-served by whichever strain of illiberalism happens to wield power.

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Where Language Policing Leads in Education - The Atlantic

The Supreme Court of Oklahoma allows access to records as a matter of public policy.

Recently, the Oklahoma Supreme Court decided a case on the confidentiality of judicial and administrative records. The State of Oklahoma v. Dennis Rivero decision is unique for many reasons, not the least of which is that the Oklahoma Supreme Court recognizedbut did not applythe presumption of public access to public records. Instead, the court held that public policy embodied by the states Open Records Act required it to overturn a blanket ban on disclosure. In this groundbreaking decision, the Oklahoma Supreme Court reached the same result as other courts have, but on new grounds that may now be followed in other courts across the nation.

Many courts decide similar cases on the basis of the presumption of public access to court records under the U.S. Constitution. The Oklahoma Supreme Court recognized this First Amendment presumption, and even pointed out that it follows that presumption in other cases. Yet it did not decide according to that constitutional presumption in this particular case.

Alternatively, many courts decide these cases on the basis of contract law. The courts in these other cases construe the agreed protective order or confidentiality agreement as a contract and interpret it accordingly. This issue, too, the Supreme Court of Oklahoma recognized but declined to address.

Instead, the court took a new approach to the facts presented in the recent case. Dennis Rivero, a physician, had defended a disciplinary proceeding before the State Board of Medical Licensure and Supervision. He agreed to a blanket protective order in that proceedingmaking everything confidential and limited to use in that proceeding, and in that proceeding only.

Rivero won the disciplinary proceeding. With that administrative proceeding at an end, he filed a lawsuit against the person whom he thought complained about him. Rivero asked the Board for copies of two depositions, and copies of his own motion for summary judgment and exhibits in the disciplinary proceeding. The Board refused, citing the agreed protective order that the doctor had signed, which make everything confidential and limited to use only in that disciplinary proceeding.

Rivero appealed the Boards order denying him access to these materials. On appeal, the Oklahoma Supreme Court ruled on the basis of public policy expressed in the Oklahoma Open Records Act and the Oklahoma Discovery Code. The Code, which the Board adopted for its proceedings, is similar to the Federal Rules of Civil Procedure. The Supreme Court ordered the depositions and the motion for summary judgment with its exhibits to be redacted and released.

Many states have public records lawsor, as in Oklahoma, open records laws like the federal Freedom of Information Act. The Supreme Court of Oklahoma ruled that just like the constitutional presumption of public access, the public policy embodied by the state Open Records Act and the Discovery Code in the Rules of Civil Procedure bars the use of blanket confidentiality orders. The court sent the matter back to the Board with directions to allow the doctor access to the documents after limited redactions and to allow him to use the redacted documents in other proceedings.

The court in this ruling made several unique moves that courts in other states could follow. The court ruled on the basis of public policy embedded in state statutes, not on constitutional requirements. And, state open records laws like those that influenced the Oklahoma Supreme Court are found throughout jurisdictions in the United States. They embody the same public policy favoring disclosure to the public as the Oklahoma Open Records Act, which the Oklahoma Supreme Court relied on in its opinion.

Furthermore, the court rested its decision on the fact that the State Board in question adopted the Oklahoma Discovery Act which has requirements for making documents and information confidential. As the Supreme Court described them, these statutory requirements have their conceptual origins in their counterparts found in the Federal Rules of Civil Procedure, Rule 26 and Rule 29.

All jurisdictions in the United States have rules of civil procedure. The effect of the Oklahoma Supreme Court reaching out to the public policy embodied in the Oklahoma Discovery Act is the legal equivalent of reaching out to the public policy embodied in the applicable rules of civil procedure. Under these rules, there is a presumption of public access to court files which must be accommodated, even in cases that contain case documents with public access restrictions.

An important aspect of this ruling is that it arises from a case involving a state administrative agency. So, the presumption of public access to court files was extended to public access to administrative agency files. Previously, disclosure was not mandated in all proceedings. The impact of the Oklahoma Supreme Courts ruling in this case could be universal: Public access to the records of courts and of administrative agencies is now presumed.

In Oklahoma, the new default is that the public has access to government materials. To restrict the publics access will be an exception, not the rule. Parties can agree, stipulate, or contract as they wish. But the parties cannot restrict public access in any proceeding simply because the parties wish it so.

Dennis Wall is a litigator and a member of the American Law Institute.

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New Public Access to Court Records - The Regulatory Review

Feb 4 (Reuters) - Johnson & Johnson tried to get a U.S. judge to block Reuters from publishing a story based on what it said were confidential company documents about the healthcare giant's legal maneuvers to fight lawsuits claiming its Baby Powder caused cancer.

"The First Amendment is not a license to knowingly violate the law," said the company in a filing late Thursday in U.S. Bankruptcy Court in New Jersey, where a unit of J&J had sought bankruptcy protection while defending the Baby Powder lawsuits. The First Amendment of the U.S. Constitution protects freedom of the press.

On Friday, Reuters reported that J&J secretly launched "Project Plato" last year to shift liability from about 38,000 pending Baby Powder talc lawsuits to a newly created subsidiary, which was then to be put into bankruptcy. By doing so, J&J could limit its financial exposure to the lawsuits.

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After the publication of the story, Reuters asked U.S. Bankruptcy Judge Michael Kaplan to deny J&J's motion, claiming it was moot. Less than an hour after Reuters submitted its letter, J&J said in a filing that it was withdrawing a request for an immediate hearing on the matter but was "not prepared to agree" that its request regarding the documents was moot.

J&J said in its filing after the publication of the story that it intends to continue discussions with Reuters and said it was "heartened that publication of confidential documents may no longer be imminent."

J&J's request to block publication was "among the most extraordinary remedies a litigant can request under the law," attorneys for Reuters, a unit of Thomson Reuters , said in a Friday court filing. The news agency's lawyers called J&J's request a "prior restraint of speech on a matter of public interest."

J&J said Reuters had obtained documents that were protected from public disclosure by an order from Kaplan. The company demanded that Reuters return the documents and refrain from publishing information gleaned from the documents.

"This is a complex matter that should be heard by the court in a forum where both sides present their cases in an appropriate setting and not argued through the media," a J&J spokesperson said in a statement on Friday.

Reuters denied that it has confidential information, saying in court papers that the confidentiality of one of the documents was lifted in January and that the second is not in the possession of Reuters.

J&J's (JNJ.N) LTL unit filed for bankruptcy in October to resolve the claims alleging J&J's talc-based products contained asbestos and caused mesothelioma and ovarian cancer. read more

J&J maintains that its consumer talc products are safe and have been confirmed to be asbestos-free.

The company has said it placed LTL into bankruptcy to settle those claims rather than litigating them individually. It has said resolving these claims through Chapter 11 is a legitimate use of the restructuring process.

Talc plaintiff committees argue that J&J should not be permitted to use bankruptcy to address the talc litigation and that by doing so, it is depriving plaintiffs their day in court.

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Reporting by Tom Hals in Wilmington, Delaware and Maria Chutchian in New York; editing by Amy Stevens and Rosalba O'Brien

Our Standards: The Thomson Reuters Trust Principles.

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J&J tried to get federal judge to block publication of Reuters story - Reuters