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Hans Bader (Liberty Unyielding) reports (though you should read the whole thing):

The University of Pittsburgh has removed a program director at its medical center because he published a scholarly, peer-reviewed white paper discussing the pitfalls of affirmative action for black and Hispanic students. This violated the First Amendment, which protects even harsh criticism of affirmative action. The white paper was gentle in its criticism of racial preferences, merely arguing that lowering admissions standards for minorities can harm their prospect of academic success by putting them in a university they are not prepared to handle. It did not advocate discrimination against any minority group….

To my knowledge, Prof. Wang has not been removed from his faculty position, only from the administrative post; but public universities are generally not allowed to do even that, given the First Amendment, at least absent serious evidence that it would likely materially disrupt the functioning of the university. And if engaging in substantive academic criticism of race-based affirmative action—a matter that is the subject of a longstanding and substantive debate in the country and in universities—is indeed seen as so disruptive, then something is badly wrong with the University of Pittsburgh.

(I should note that a university could rightly insist that its employees follow legally permissible university policies, including race-based affirmative action programs, whether or not they agree with them; and they could ask their employees for assurances that they would indeed follow such policies. But here, as I understand it, Prof. Wang was removed from the post simply for his public criticism of race-based affirmative action, and not for any statement saying that he wouldn’t do his job.)

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It’s common in a democracy to worry that you’ll have to make peace with unpalatable election results. What’s new this year is the possibility that many Americans might refuse to make peace at all. It’s the logical extension of a moment in which the major presidential candidates seem to have been picked for their ability to accurately represent the pathetic conditions of their parties, the partisans of those parties agree on little other than mutual contempt, and the government over which they’re scrapping has become so intrusive and punitive that nobody can afford to lose control.

President Trump raised eyebrows last month when, asked whether he’d accept a loss in the presidential election, he refused to commit. “No, I’m not going to just say yes. I’m not going to say no,” Trump told Fox News’s Chris Wallace.

“I think mail-in voting is going to rig the election,” the president added, in his ongoing effort to cast doubt on the results of remote voting.

It would be nice to be able to treat Trump’s ambivalence about election results as an aberration, but it’s actually a continuation of the attitude he held during the 2016 election that he ultimately won. More importantly, Trump’s maybe-I will, maybe-I-won’t take on swallowing unwelcome election outcomes is shared by much of the American public.

“Our data shows that partisans are quite open to their preferred presidential candidate rejecting the legitimacy of the election if they claim credible evidence of illegal voting or foreign interference,” reports the Democracy Fund Voter Study Group, a collaboration of analysts and scholars trying to get a handle on the evolving state of American politics.

“About three in 10 (29 percent) Republicans say it would be appropriate for President Trump to refuse to leave office because he claims that he has credible evidence of illegal voting,” the study group notes. “On the other hand, 57 percent of Democrats say that it would be appropriate for a Democratic candidate to call for a do-over election because they claim to have credible evidence of interference by a foreign government.”

Let’s emphasize the word “claim” in both of those scenarios. As the study group points out, “there is ample historical precedent for candidates to mislead the public about potential election interference in order to rally supporters against an electoral outcome with limited or no evidence.”

It’s also worth noting here that, despite justifiable concern about Trump’s respect for election outcomes and disturbing support among Republicans for him refusing to leave office if he makes claims of illegal voting, this poll finds even weaker respect for election results among Democrats. Not only would a majority favor a “do-over” in case of claims of foreign interference, but “38 percent of Democrats say it would be appropriate for a candidate to call for a do-over if they win the popular vote but lose the Electoral College.” That’s an outcome that is perfectly constitutional and has put several presidents—including the current one—in office.

Also concerning is that just over 20 percent of both Democratic and Republican respondents believe violence is at least somewhat justified if their side loses the election. That’s up from the 5 to 15 percent open to political violence in an earlier study by Nathan Kalmoe and Lilliana Mason, who also participate in the Democracy Fund Voter Study Group.

This all makes horrible sense in the context of a country largely divided into political factions that despise one another. Poll after poll finds that Democrats consider Republicans to be immoral, closed-minded, and racist. Republicans regard Democrats as immoral, unpatriotic, and socialist.

“The level of division and animosity – including negative sentiments among partisans toward the members of the opposing party – has only deepened” since 2016, according to Pew Research.

While partisans of the two major political parties really do agree on less by the year, they also work from distorted conceptions of who their opponents are and what they want. That’s hardly a shocker with many people concentrated in communities dominated by one point of view and intolerant of dissent.

“It’s hard to know exactly what’s going on,” commented Amanda Ripley, Rekha Tenjarla, and Angela Y. He in a 2019 piece for The Atlantic on the geography of partisan prejudice. “But what’s clear is that both sides are becoming more hostile toward one another.”

Perhaps unsurprisingly, American participation in politics is now driven less by loyalty to one’s own side than by animosity toward the opposition.

Then again, rallying around your own party is a bit of a challenge when the standard-bearers show evidence of having been selected on a dare. Whatever the reality of their fitness to hold office, the two septuagenarian presidential hopefuls have taken to accusing each other of senility in what Politico calls “the dementia campaign.”

“Biden can’t put two sentences together,” Trump says of Biden. “They wheel him out. He goes up—he repeats—they ask him questions. He reads a teleprompter and then he goes back into his basement.”

“Look, all you gotta do is watch me, and I can hardly wait to compare my cognitive capability to the cognitive capability of the man I’m running against,” Biden shoots back.

It would be less sad if there was anybody in the country who would be the least bit surprised if it turned out that both major candidates are a little wobbly in terms of their mental faculties. And those are the leading contenders for the White House in a country struggling with a pandemic and with the economic devastation wrought by social distancing and especially by mandated limits on economic and other activity.

Those limits, arbitrarily defining “essential” businesses that can remain open and others that must close, restricting travel, imposing quarantines, mandating mask-wearing, and barring cross-border movements reach further into people’s lives than we’ve seen in living memory. Whether motivated by sincere public health concern, panic, or vindictiveness toward disfavored segments of society, they involved exercises of vast and dangerous authority over people’s lives.

They also breed stresses which contribute to the recent eruptions of protest and violence in reaction to decades of abusive, biased, and militarized policing. Those protests have yet to subside, and the issues they address as well as the divisions they represent are sure to play a large role as the election approaches.

And those elections may well be a hot mess. While the president exaggerates the potential for expanded fraud in mail-in elections—most Arizonans have voted by mail for years with little difficulty—learning curves seem to be especially steep for government officials. New York turned its June primary into a contentious train wreck through inexperience in dealing with mailed ballots. That might be an opportunity for Trump to push his claim that “mail-in voting is going to rig the election.”

Or maybe the Democrats will point their fingers, again, at Russia.

Whatever happens, there’s a good chance the election in November won’t resolve very much at all.

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See Judge C.J. Williams’ opinion today in Nunes v. Lizza (N.D. Iowa), which seems generally correct to me. Lizza’s motion to dismiss was granted in its entirety as to the substance of the case. It was denied in part chiefly to the extent that it sought attorneys’ fees and costs under the California anti-SLAPP statute (the judge concluded that this state statute couldn’t apply in federal court, an important procedural  question on which federal courts are split).

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From Marin County (Cal.) Judge Roy O. Chernus’s decision last week in People v. Velyvis:

[T]he Family Law court granted petitioner John Velyvis’ application for a Family Code § 6218 Domestic Violence Protective Order (DVPO) against his former wife Melissanne Velyvis (Velyvis or defendant), finding that she “harassed” petitioner in violation of Family Code§ 6320(a) by posting a March 13, 2018 “blog” on WordPress.com, entitled: “Non­Fatal Strangulation Administered by Husband Dr., John H. Velyvis, from Victim to Survivor … The Untold Story 2018.”

Among the prohibitions, the court ordered Velyvis to remove “all social media, blogs and internet” postings regarding petitioner and his children and barred her from making any new social media postings about them[:] …

“The intent of this restraining order is to curtail ongoing posting and communications made by Melissanne Velyvis involving John Velyvis. While recognizing an individual’s freedom of expression, in connection with this dissolution and given the relationship qualifying for a domestic violence restraining order, the court has found the statements to have been made for the purpose of harassing Petitioner, damaging Petitioner’s reputation, interfering with Petitioner’s professional livelihood and damaging Petitioner’s personal relationships. Accordingly:

“Melissanne Velyvis shall remove any postings on social media/biogs/internet regarding Petitioner or his children. This includes direct and indirect postings (Example referring to Petitioner as [‘]former husband/person with fiduciary duty[‘] and then using Melissanne Velyvis as identification of author).

“Melissanne Velyvis shall not post anything on social media, biogs, and internet regarding Petitioner or his children.

“Melissanne Velyvis shall cease and desist from publishing any information concerning Petitioner and his children for the duration of this restraining order. This includes, but is not limited to providing defamatory statements and documents to third parties about Petitioner. Melissanne Velyvis shall refrain from interjection into custody proceedings involving or related to John Velyvis, directly or indirectly, absent a court order.

“Melissanne Velyvis shall remove John Velyvis’ likeness from her own social posting and remove any references indicating they are currently married ….”

Six months later, the Marin County District Attorney filed a misdemeanor complaint against Velyvis .alleging one count of Penal Code§ 273.6; i.e., between July 19 to July 25, 2019 Velyvis “willfully, unlawfully, and knowingly” violated the DVPO “issued by Marin County Superior Court case number FL1603174.”

The complaint did not describe the offending activities. Defendant states, without contradiction, that she is charged with violating the “no speech” prohibition….

The court in the criminal case began by noting that, under California law, a criminal defendant who is being prosecuted for violating a court order can raise the unconstitutionality of the order as a defense. California thus rejects the “collateral bar” rule (which is applied in federal court for federal orders), under which the target of an order has to object to it by appealing it, and generally can’t just violate it and defend herself by arguing that the order is unconstitutional.

And the court then went on to conclude that the family court order was indeed unconstitutional (quite correctly, I think, for reasons given in this article):

Defendant asserts the broad language in the DVPO that directs: “Melissanne Velyvis shall not post anything on social media, biogs, and internet regarding Petitioner or his children” and “Melissanne Velyvis shall cease and desist from publishing any information concerning Petitioner and his children for the duration of this restraining order,” constitutes an invalid prior restraint that impermissibly infringes on her free speech rights …. Defendant contends this overbroad language of the DVPO unlawfully prevents her from sharing her life experiences and feelings she attributes to her marriage to petitioner with her family, friends and other adults willing to read her comments and criticisms ….

The People respond by asserting that the restraining order may lawfully limit speech that exhibits a pattern of conduct the court deems “abusive.” As proof of this pattern of abuse, the People rely on evidence presented at the hearing which showed, in addition to posting the blog, … defendant interjected herself into other family law matters involving her ex-husband: she made unsolicited comments to a custody evaluator during the current contested custody hearing involving petitioner and his first ex-wife; and defendant made disparaging remarks about petitioner during his current girlfriend’s divorce proceedings to another man. The People also cite defendant’s plans to file a complaint against petitioner with the California Medical Board….

In California, a court must find that “extraordinary circumstances” exist in order to restrain the defendant’s right to share independently obtained information about another adult with other willing adults. The fact the public sharing of these comments might be humiliating to the targeted adult, or cause emotional distress or even cause harm to the subject’s professional reputation, does not rise to the level of a compelling or extraordinary circumstance.

In In re Marriage of Candiotti (1995) 34 Cal. App. 4th 718, the court struck down a protective order which permitted the ex-wife’s (Debra) to share negative, independently obtained information about her ex-husband’s new wife during contentious child custody proceedings, only to a specific set of adults and professionals associated with the court proceedings.

The court held that while the state has a compelling interest to restrain Debra from disparaging the new wife to the divorced couple’s children or in the children’s presence, “the order here went further, actually impinging on a parent’s right to speak about another adult, outside the presence of the children. Such an order, under these circumstances, constitutes undue prior restraint of speech. It would prevent Debra from talking privately to her family, friends, coworkers, or perfect strangers about her dissatisfaction with her children’s living situation.”

In reaching this conclusion, the court in Candiotti recognized that the emotional discomfort or harm to reputation that disparaging comments may cause to the targeted adult do not constitute sufficiently compelling reasons to restrain them:

“Thus, while we agree that the court certainly has the power to prevent Debra from undermining Thomas’s parental relationship by alienating the children from Donna, the order here was much more far-reaching, aimed at conduct that might cause others, outside the immediate family, to think ill of Donna. Such remarks by Debra may be rude or unkind. They may be motivated by hostility. To the extent they are libelous, they may be actionable. But they are too attenuated from conduct directly affecting the children to support a prior restraint on Debra’s constitutional right to utter them.”

Likewise, in Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, the trial court issued a preliminary injunction prohibiting plaintiff actress Gilbert’s ex-husband Brinkman from disclosing any information regarding Gilbert’s drug or alcohol use or sexual relations with other men that Brinkman acquired before, during or after their marriage, to anyone (except as necessary to the current court proceedings).

The court held the preliminary injunction was an invalid prior restraint on Brinkman’s free speech rights and that Gilbert’s claimed emotional distress and reputational damage are not sufficiently compelling reasons to justify the prohibition….

Under circumstances similar to our case, the trial court in Molinaro v. Molinaro, supra, 33 Cal. App. 5th 824 issued a DVPO prohibiting the husband Michael from posting anything about his pending divorce from Bertha on Facebook. Bertha complained that Michael had physically obstructed her from moving out of the couple’s home and had physically intimidated her. At a contested hearing on her application for the DVPO, Bertha complained that Michael was posting everything about the divorce case on Facebook; he gave their children ages 18, 17 and 13 years old, copies of Bertha’s pleadings; he posted on Facebook false statements that Bertha ran away with $250,000 from the couple’s home equity line of credit and that she is crazy and has hallucinations; and she said his behavior was getting worse and she feared for her life and her children’s safety.

The DVPO issued by the court included a stay-away order and ordered Michael not “‘to post anything about the case on Facebook'” and “‘not to discuss the case with the children.'”

On appeal from the DVPO, the appellate court held that the portion of the restraining order barring Michael from “posting anything about the case on Facebook” was unconstitutionally overbroad and impermissibly infringed on his free speech rights. It found that his “posts were not specifically directed to the minor children, but in many cases invited comments from Michael’s adult friends and extended family,” and that most of his posts “expressed his apparent despair about the divorce and his separation from the children.” The court concluded, as did the court in Candiotti, that such comments were “‘too attenuated from conduct directly affecting the children to support a prior restraint on [Michael’s] constitutional right to utter them.'”

Our courts also recognize that a person has a constitutional right to repeat or comment upon public or private information, not previously found by a trial court to be defamatory. “‘The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press….'” (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1158 [injunction may properly issue after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory]; accord. Evans, supra, 162 Cal.App.4th at p. 1169 [“[A] court may not constitutionally prevent a person from uttering a ‘defamatory’ statement before it has been determined at trial that the statement was defamatory.”].) There is nothing on the face of the complaint, or in the Family Court judge’s judicially­ noticed fmdings of fact to indicate any of defendant’s communications were previously found to be defamatory.

As stated in the DVPO, the Family Law judge found that defendant’s statements about Dr. Velyvis were intentionally harassing, damaged his reputation and interfered with his personal relationships.

Based on the authorities discussed above, these reasons are insufficient to justify such a broad prohibition. The court finds that the portion of the DVPO restraining defendant from posting on the internet or communicating any information about defendant’s ex-husband or his children is impermissibly overbroad and constitutes an invalid prior restraint under the federal and California constitutions. Violation of this portion of the DVPO, therefore, is not an actionable offense.

I’m particularly pleased to see the use of Molinaro; when that case was first handed down, it was as a nonprecedential opinion, but two groups and I filed letters asking that the First Amendment analysis be published—on the grounds that it would set a precedent that would be useful to future courts—and the Court of Appeal agreed. I’m pleased to see that this case justifies the predictions we had made.

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Joe Biden enjoys a comfortable lead over President Donald Trump in most polls, but the former senator and vice president is famous for gaffes that worry his supporters virtually every time he opens his mouth, especially without a script.

In an interview earlier today with CBS’s Errol Barnett, Biden scoffed at the idea that because of his advanced age—he would be the oldest person ever to take office if elected in November—he should take a test to show he has his wits about him (a few weeks ago, Trump discussed taking a cognitive test on Fox News).

“Why the hell would I take a test?” he asked angrily before launching a rant:

That’s like saying, ‘You—before you got on this program you took a test where you’re taking cocaine or not, what do you think? Huh? Are you a junkie?’

The weirdness doesn’t end there. Throughout the exchange, Biden’s affect is exaggerated and he repeatedly stammers and cuts himself off, at one point stumbling repeatedly when announcing that he’s confident he will shine in any debate with Trump.

I am very willing to let the American public judge my physical and mental fil…my physical as well as my mental fil…and mental fitness…and to make a judgement about how I am.

Either Trump, who is 74, or Biden, who is 77, will be elected president come November. The behavior and speech of each have given rise to legitimate questions about their cognitive functioning at the exact moment when the United States is skewing younger (more than 50 percent of Americans are below the age of 40). The sort of display Biden put on today is only going to sharpen concerns about our gerontocracy. Based on their campaign plans and past performances in office, I don’t plan on voting for either Trump or Biden. But if they are going to wreck the country, it would be good to know that they at least knew what they were doing.

Click below for the 90-second clip. Go here for the full interview.

“Why the hell would I take a test?”@JoeBiden scoffs at idea of taking a cognitive test.

Suggests @realDonaldTrump “can’t figure out the difference between an elephant and a lion.”

Full interview at @NABJ @NAHJ virtual convention Thursday 8am ET.@CBSNews pic.twitter.com/rGNJpjfbF6

— errol barnett (@errolbarnett) August 5, 2020

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