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If you have something you’ve been working on for the February submission cycle, submit it to us first. We require exclusive submission, but we will respond within 14 days (a promise we have so far kept for every submission that we receive)—and if you want to publish quickly, we could publish it within weeks, which is to say nine months to a year (or more) before most journals would publish it.

So far, we’ve published articles by (among others) Jack Balkin (Yale), Mark Lemley (Stanford), Christopher Yoo (Penn), and more. Our board of reviewers includes, among many others, Profs. Amy Adler, Vince Blasi, Erwin Chemerinsky, Jamal Greene, Michael McConnell, Robert Post, Fred Schauer, Geoffrey Stone, and Rebecca Tushnet, as well as Judges Stephanos Bibas, Jose Cabranes, Douglas Ginsburg, Raymond Randolph, Neomi Rao, Robert Sack, David Stras, Jeffrey Sutton, and Diane Wood.

We just published today David McGowan’s article on rethinking New York Times v. Sullivan. Yesterday we accepted an article by Jacob Mchangama (author of the forthcoming book Free Speech: A Global History from Socrates to Social Media) and Natalie Alkiviadou comparing South African “hate speech” law with European law. Tomorrow, we could be accepting your article! For more on the journal, see here; to submit, go to our ScholasticaHQ page.

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The article is now published, at 1 J. Free Speech L. 509 (2022); here’s the Introduction:

The actual malice rule of New York Times Co. v. Sullivan is iconic because of its beneficiaries, not its reasoning. The immediate beneficiaries of that rule were civil rights advocates and their movement; the general beneficiaries at the time were established media firms. Benefits to civil rights advocates, and the intolerable prospect that libel laws could be used to suppress reporting of Southern racism, give the case its moral force.

Benefits to established media firms likely account for the expansion of the holding over time, and for its entrenched status, but new classes of speakers enabled by innovation embrace the rule as well. At this point, the rule may benefit such speakers more than, and at the expense of, firms willing to invest in accuracy.

The opinion’s reasoning is a pastiche of history and topical concerns held together by a plausible assumption about the economic incentives of publishers and an unstated assumption about the cost structure of publishing, and thus about the supply of information. The cost structure assumption no longer holds, and the reasoning alone is insufficient to justify the actual malice rule.

Apart from respect for precedent as such, therefore, the case for retaining that rule is weak. Current calls to revisit the case are more pronounced on the Right, but there is good reason to rethink the actual malice rule regardless of one’s political views. Corollary doctrines—that, at least in cases involving matters of public concern, a defamation plaintiff must prove falsity, fault must be shown to establish liability, damages must be proved unless at least recklessness is shown, and factual findings receive de novo review—should remain.

Check out the whole thing!

By the way, the article was submitted on Oct. 15, accepted Oct. 19, and published now three months later. And that delay was in part because the author wanted to make some more edits—which may in part have stemmed from the blind reviewers’ suggestions and then from suggestions from commentators at an online workshop we put together; both of those are part of the service that the Journal offers to authors. Had there been more reason to get the article out quickly, we could have done that, within a few weeks if necessary.

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Last week, the California Court of Appeal (Bixler v. Superior Court) refused to apply a broad Scientology arbitration agreement to a lawsuit brought by ex-members who claimed they were mistreated in various ways after they left the Church:

Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues….

I asked Prof. Michael Helfand (Pepperdine) about this, since I know he’s written extensively on religious arbitration, and he kindly passed along this reaction, which strikes me as very interesting and useful:

Last week, a California Court of Appeals issued a surprising decision, declining to enforce religious arbitration agreements between a number of plaintiffs and the Church of Scientology. While a decision refusing to compel arbitration was not, itself, surprising, the basis for the court’s decision was: that compelling arbitration would violate the First Amendment right of the plaintiffs to change their religious beliefs. Such a holding is the first of its kind when it comes to religious arbitration agreements.

It is also a bit thin on some of its arguments, and leaves some significant questions both as to how it is consistent with prevailing doctrine and as to how it might apply in other circumstances. I’ll do my best to identify some of these issues in the post below.

Background

As I laid out in a previous post here, the underlying allegations of Bixler v. Church of Scientology International are certainly disturbing. According to the complaint, plaintiffs allege they were sexually assaulted by Daniel Masterson, himself a member of the Church of Scientology, and that the Church of Scientology sought not only to cover up these incidents, but also repeatedly threatened and harassed the plaintiffs once they reported the incidents. In response to the complaint, the Church of Scientology filed a motion to compel arbitration, arguing that the plaintiff’s claims must all be submitted for binding arbitration pursuant to an arbitration agreement executed between the plaintiffs and the church when the plaintiffs joined the church. The plaintiffs, however, argued have argued that the agreements were invalid because the arbitral process was not neutral and because enforcing the arbitration agreements would violate their free exercise rights under the First Amendment.

There seemed to be good reason to assume that, if the California Court of Appeal was going to invalidate the underlying arbitration agreement, it would do so because of neutrality problems with the contractually specified arbitral process. Under the arbitration agreement, representatives of the Church of Scientology appears to play a role in, for example, the presentation of evidence and procedural decision-making; in addition, the arbitrator qualification provision required all the arbitrators to be in “good standing” with the “Mother Church,” raising questions as to whether they could adjudicate the dispute neutrally (for more on some of those issues, see my previous post). Indeed, the California Court of Appeal, when requesting additional briefing from the parties, seemed to indicate that was the route it was going. The letter requested “additional briefing on the following issue: Whether the compelled arbitration is sufficiently neutral to constitute an enforceable arbitration” and then went on to cite some of the case law, and Scientology-related precedent, on the issue.

Instead, the court chose to invalidate the arbitration agreements on constitutional grounds. According to the court, “An individual possesses an ‘inalienable First Amendment right to the free exercise of religion, which includes her right to change her religious beliefs ….’ (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 118.)” As a result, “We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues.” Thus, even though the disputes were within the scope of the arbitration agreement, and therefore ought to have been resolved pursuant to the terms of the arbitration agreement, the court concluded the constitutional rights of the plaintiffs prohibited compelling arbitration.

This decision is certainly novel. But it stands in tension with prevailing case law and generates some serious doctrinal problems going forward:

[1.] Choice of precedent

One of the chief curiosities of the decision is its choice of precedent. While there has been recent academic criticism of religious arbitration, see Michael A. Helfand, “The Peculiar Genius of Private Law Systems”: Making Room for Religious Commerce, 97 Wash U. L. Rev. 1787 (2020) (parts III and IV collect this literature and critique it), courts have uniformly enforced religious arbitration agreements and awards over and above constitutional challenges. Accordingly, in reaching it holding, Bixler does not cite to cases involving religious arbitration agreements. Instead, in establishing a right to change faiths, it looks to case law regarding the enforceability of religious upbringing provisions in agreements addressing child custody.

The puzzle here is that child custody agreements are not entitled to a presumption of enforceability because questions of custody, ultimately must be based on a judicial assessment of the best interests of the child. To be sure, the doctrine here is complex and can vary significantly by jurisdiction. But, by contrast, courts are required to enforce arbitration agreements, absent contract law defenses, as a matter of federal law. See 9 U.S.C. §2. The court’s choice to rely nearly exclusively on custody cases—without addressing the significant doctrinal differences between child custody and arbitration—is, at best, curious.

[2.] State Action Doctrine

Another curious move is the court’s dismissal of the state action requirement. A prerequisite of a constitutional claim is the existence of state action. Generally, judicial enforcement of arbitration is not viewed as state action. See Christopher Drahozal, Commercial Arbitration: Cases and Problems 18 (3d ed. 2013) (noting that “[a]ll of the federal courts that have addressed the issue have held that commercial arbitration is not ‘state action’ to which constitutional protections apply”). The reason why, in the words of then-Judge Posner, is because “Arbitration is a private self-help remedy. The American Arbitration Association is a private organization selling a private service to private parties who are under no legal obligation to agree to arbitrate their disputes or, if they decide to use arbitration to resolve disputes, to use the services of the Association, which is not the only provider of such services…. When arbitrators issue awards, they do so pursuant to the disputants’ contract—in fact the award is a supplemental contract obligating the losing party to pay the winner. The fact that the courts enforce these contracts, just as they enforce other contracts, does not convert the contracts into state or federal action and so bring the equal protection clause into play.” Smith v. Am. Arbitration Ass’n, 233 F.3d 502, 507 (7th Cir. 2000).

There is an avalanche of commentators disagreeing, but the consensus among courts is what it is. See Sarah Rudolph Cole, Arbitration and State Action, 2005 BYU L. Rev. 1, 3-4 (noting this consensus among courts and also collecting much of the significant scholarly criticism).

The California Court of Appeal dismissed this concern in a footnote with the following: “We believe cases such as In re Marriage of Weiss, which specifically hold that a party cannot bargain away her constitutional right to change religions, are the appropriate precedent. In contrast to Scientology’s theory that enforcing agreements which limit the right to change religions would not constitute state action, those authorities recognize that court enforcement of such an agreement would encroach on a person’s fundamental constitutional right.”

It is not clear what the court has in mind here. Maybe the fact that compelling arbitration is a form of specific performance, and the remedy of specific performance itself—participating in a Church of Scientology arbitration—constituted a violation of the plaintiffs’ free exercise rights, explains why this decision differs from the general doctrinal consensus. Such an argument, however, is complicated by the court’s own statement that “Whether Scientology arbitration is a ritual is immaterial to our analysis.” It is possible that some version of this argument is still available. But the court’s analysis certainly leaves the reader wondering. Given the overwhelming judicial consensus on the other side of the issue, one would have expected more than a footnote from the court.

[3.] Discriminating against religious arbitration

Given the court’s primary holding, the decision also tackles the question of whether refusing to enforce religious arbitration agreements constitutes “hostility to religion.” The court concludes that it does not because there is “no authority upholding an arbitration agreement ad infinitum.” This argument seems to contend that the Scientology agreement—which covers all future disputes, including those sounding in both contract and tort, between the plaintiffs and the Church of Scientology—would not have been enforced even if it did not involve religious arbitration. The opinion then goes on to distinguish California case law compelling arbitration of ongoing tort claims because, in those cases, the contractual scope of the arbitration agreement covered tort claims “‘stem[med] from the contractual relationship between the parties,’ and were therefore within the scope of the arbitration agreement. Here, petitioners’ claims against Scientology do not stem from the contractual relationship.”

It is hard to understand what the court is getting at here. If the court’s point is that Bixler is different because the disputes are not within the scope of the arbitration agreement, then there is no need for the First Amendment argument; the court shouldn’t compel arbitration because the disputes are not within the scope of the agreement (I raised a similar possibility here).

But if the court does think that disputes are within the scope of the agreement, then it is treating religious arbitration agreements worse off than other forms of arbitration. The court makes this move to protect what it views as the constitutional right of the plaintiffs. However, in so doing, it does also raise the possibility—which the court appears to acknowledge—of a claim that its decision constitutes a form of religious discrimination pursuant to cases such as Church of Lukumi Babalu Aye v. City of Hialeah and Trinity Lutheran v. Comer.

[4.] Application of Bixler

The big question stemming from the court’s decision in Bixler is where it might apply. Taken to its logical conclusion, it could be read to stand for the proposition that courts must invalidate agreements for religious goods and religious services whenever one of the parties changes relevant religious beliefs or affiliation. Such impact would be far reaching. As Barak Richman and I outline in The Challenge of Co-Religionist Commerce, 64 Duke L.J. 769 (2015), there is quite an active religious commercial industry in the United States that employs a range of religious commercial instruments. This sort of holding would raise significant uncertainty regarding such contracts given the possibility that one of the parties might, in the future, argue against enforcement on the ground that they might change their religious beliefs or affiliations. Prior to Bixler, one might have thought such claims would be subsumed more generally under the impracticability or frustration of purpose contract doctrines. Now, such claims would sound in the First Amendment.

By way of an example, consider the case of a synagogue that has in its membership application and agreement (which all prospective members must sign) a clause which states that any and all disputes shall be brought before a Beit Din (rabbinical court) whose judgment shall be final and binding. And imagine that a member leaves the synagogue either to join another synagogue or to join another religion without paying prior dues owed to the synagogue. Prior to Bixler, assuming that a court determined that the arbitral process was neutral and the disputes fell within the scope of the arbitration agreement, a court would presumably have compelled arbitration.

After Bixler, one can imagine the former member might argue that his or her leaving the synagogue constituted a change in religious affiliation and that compelling arbitration before the third-party neutral rabbinical court for adjudication would violate his or her “inalienable First Amendment right to the free exercise of religion, which includes her right to change her religious beliefs.” The former member might make this argument whether they completely left the faith or simply changed synagogue affiliation as either could potentially justify an argument along the ones sketched in Bixler.

The court says precious little on this front—although addressing future applications of the doctrine is not necessarily something one would have expected. That being said, it is worth noting that some of the language in the court’s opinion noted above—that the claims implicated in Bixler did not stem from a contractual relationship—might be used to limit the decision’s application to cases where parties sought arbitration of future tort claims that were not related to an underlying contractual relationship. In this way, maybe the synagogue due case would be treated differently than the Church of Scientology arbitration in Bixler.

But given the paucity of analysis in Bixler, it is extremely hard to tell. Like much of the decision, it is all a bit quick given the kind of far-reaching—and unanticipated—consequences that the decision may have.

Continue reading “Scientology Arbitration and the First Amendment: Some Questions About Bixler v. Superior Court”

Former Minneapolis police officer Derek Chauvin was convicted of murder and manslaughter last April for killing George Floyd by pinning him facedown to the pavement for more than nine minutes, an incident that triggered nationwide protests. Chauvin, who was sentenced to 270 months in prison after those convictions, pleaded guilty in December to violating 18 USC 242 by depriving Floyd of his constitutional rights under color of law. The three officers who were with Chauvin during Floyd’s arrest in May 2020 are now on trial in federal court, charged with violating the same statute by failing to intervene or render medical aid.

In opening statements yesterday, the prosecution and the defense presented dueling portraits of three men who either callously disregarded Floyd’s pleas for help or understandably deferred to a superior officer in a volatile and potentially dangerous situation they were unable to handle on their own. Yesterday and today, the jury heard testimony from FBI forensic media examiner Kimberly Meline, who presented videos of Floyd’s arrest and the aftermath, and Christopher Martin, the cashier at the store where Floyd allegedly used a fake $20 bill to buy cigarettes, the incident that ultimately led to his death.

The challenge for federal prosecutors is proving beyond a reasonable doubt that the officers not only neglected their legal duties but did so “willfully.” Officers J. Alexander Kueng and Thomas Lane, both rookies at the time, helped restrain Floyd as he repeatedly complained that he could not breathe. Lane held Floyd’s legs, while Keung applied pressure to his back. Officer Tou Thao was tasked with managing a group of bystanders who were increasingly alarmed by Chauvin’s treatment of Floyd, warning that his life was in danger.

“For more than nine minutes, each of the three defendants made a conscious choice over and over again not to act,” federal prosecutor Samantha Trepel told the jury. “They chose not to intervene and stop Chauvin as he killed a man slowly in front of their eyes on a public street in broad daylight.”

As Chauvin’s lawyer did during his state trial, the defense attorneys urged the jury to consider factors that were not captured in the horrifying videos of Chauvin kneeling on Floyd’s neck. Kueng and Lane had unsuccessfully tried to force an agitated Floyd into the back seat of their patrol car after arresting him for using a counterfeit bill. “He was all muscle,” said Earl Gray, Lane’s lawyer. “These two rookies simply could not get this fellow in the back seat and were clearly doing something wrong. So what does Chauvin do? He takes over and he grabs the guy and he puts him on the ground.”

Gray suggested that Floyd, who seemed to be intoxicated, was exhibiting “superhuman strength”—a claim that Chauvin’s defense also deployed. Former police officer Barry Brodd, testifying as a use-of-force expert during Chauvin’s trial, averred that “drug-influenced” suspects “don’t feel pain” and “may have superhuman strength”—an old canard with racist roots that police tend to drag out when they are accused of using excessive force.

Kueng’s lawyer, Thomas Plunkett, emphasized that he was working just the third shift of his career that day, when he was “confronted with a complex, rapidly unfolding set of circumstances.” Plunkett argued that Kueng had received “inadequate training” and suggested that he was in no position to question Chauvin, his training officer.

Thao’s lawyer, Robert Paule, argued that the officer, who had been employed by the Minneapolis Police Department for about 11 years, had his hands full as “a human traffic cone” standing between his colleagues and a group of six to 10 witnesses. In Trepel’s telling, the outraged reactions of those onlookers, far from an extenuating circumstance, showed that the defendants should have known Chauvin’s behavior was beyond the pale. “After Mr. Floyd lost the ability to speak, the people on the sidewalk stood up for him,” Trepel said. “They understood just by seeing his body go limp, listening to his words and then listening to his silence that, unless somebody changed what was happening, he would die.”

While Thao may not have had as clear a view of what was happening as Kueng and Lane did, his responses to the bystanders’ objections made it seem as if he did not really care. He initially appeared to make light of the situation, saying, “This is why you don’t do drugs, kids.” Thao echoed the other officers’ false assurances about Floyd’s condition, saying, “He’s talking, so he’s fine.”

A man who said he had trained at the police academy repeatedly questioned that judgment and berated Thao for not intervening: “That’s bullshit, bro. You’re fucking stopping his breathing right there, bro….You’re a bum for that, bro.” A woman who identified herself as a Minneapolis firefighter told Thao, “You should check on him… He’s not responsive.” Thao, the “human traffic cone,” disregarded all such warnings, ordering the bystanders who stepped into the street back onto the sidewalk.

Lane twice suggested that, consistent with what police are taught about the risk of “positional asphyxia” during prolonged prone restraints, Floyd should be turned from his stomach onto his side. “The medical aid that would have saved George Floyd’s life was as simple as that—turning George Floyd on his side so his heart kept beating,” Trepel said.

Lane’s suggestions, which Chauvin rejected, imply that Lane recognized Floyd was in danger, although they also indicate that Lane was more concerned about Floyd’s welfare than Chauvin was. By contrast, Trepel portrayed Kueng, based on the video record, as idly distracted by gravel in the tire of a police car as Floyd begged for his life.

The extent and nature of the defendants’ indifference are relevant in deciding whether they acted “willfully” in the context of 18 USC 242. In the 1945 case Screws v. United States, the Supreme Court held that willfulness requires either that the defendant had “a specific intent” to deprive someone of his constitutional rights or that he acted with “open defiance or in reckless disregard of a constitutional requirement.” Federal appeals courts applying that standard have reached somewhat different conclusions.

The U.S. Court of Appeals for the 5th Circuit, for example, has said willfully means “the act was committed voluntarily and purposely with the specific intent to do something the law forbids”—i.e., “with a bad purpose either to disobey or to disregard the law.” The U.S. Court of Appeals for the 3rd Circuit, by contrast, approved instructions saying jurors could “find that a defendant acted with the required specific intent even if you find that he had no real familiarity with the Constitution or with the particular constitutional right involved.” A 2020 report from the Congressional Research Service notes that “the Supreme Court’s interpretation of the willfulness requirement has resulted in what some view as a significant hurdle to bringing Section 242 claims.”

In addition to the federal charges, Kueng, Lane, and Thao face state charges of aiding and abetting Chauvin’s crimes, which may be easier to prove. After the state charges were filed, Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, noted that they are “legally valid under Minnesota law” but “rely on some fringe doctrines of accomplice liability.” Those doctrines, he added, “have long been criticized by progressive reformers” because they “create expansive strict liability for minor participants in group crimes.”

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A New York Supreme Court judge ruled on Monday that Governor Kathy Hochul’s mask mandates for schools and public places are void and cannot be enforced. 

On December 10, Hochul reinstituted rules published by the New York Department of Health requiring masking in all public schools and for most venues generally unless they required proof of vaccination. The mandate was initially supposed to be reassessed on Jan. 15, but Hochul announced an extension on New Year’s Eve, pushing the mandate until February 1. 

In his decision in the case, brought by several New Yorkers against the state health department, New York Supreme Court Justice Thomas Rademaker of Nassau County wrote that Hochul and the state health commissioner lacked the authority to enact the measure and that the power to do so rests with the state legislature. 

In March 2021, the New York Senate and Assembly passed legislation restricting New York governors from implementing or extend mandates outside of a state of emergency.

“It is evident that the Legislature of the State of New York is the branch of government charged with enacting laws and that the Executive branch is charged with enforcing the law,” Rademaker wrote. He also expressed concern at the prospect of unelected officials doing the work of legislators. 

“To allow such agency law making would result in laws being changed at the whim of every new Commissioner who could then be said to be beholden to their appointor,” the decision reads. “But also it would surely result in a lack of representative government wherein only a select few appointees of the Governor make the laws.” 

On Monday night, the office of New York Attorney General Letitia James filed a notice of intent to appeal the ruling. She also announced this on her Twitter account. Hochul released a statement expressing “strong disagreement” with the ruling and declaring that she will seek “every option” to reverse it. 

“My responsibility as Governor is to protect New Yorkers throughout this public health crisis, and these measures help prevent the spread of COVID-19 and save lives,” Hochul said.

The ruling voids New York’s statewide mask mandate for public spaces. However, it does not eliminate local mask mandates. 

New York City Mayor Eric Adams said that the mask mandate would remain in place for the city’s schools. “I believe it’s unfortunate that it was struck down, and I believe those jurisdictions that are using it as an opportunity to remove mandates are making a big mistake,” he said on New York radio station 1010 Wins.

Meanwhile, at least 20 Long Island school districts have moved to make mask-wearing optional. These districts include: Plainedge, Massapequa, North Merrick, Smithtown, Levittown, East Meadow, Sachem, West Islip, Farmingdale, Franklin Square, Rockville Centre, Sewanhaka, Bellmore-Merrick Central High School Districts, Copiague, Carle Place, Harborfields, Commack, Connetquot, Lindenhurst, and South Huntington.

The science behind masking children in schools has been deeply politicized. As Reason has reported, some widely-circulated studies cited by the CDC have amounted to “junk science.” Furthermore, although the Omicron variant of COVID-19 is very contagious, it is milder than earlier strains of the virus, and the COVID-19 vaccine is available for anyone at least 5 years old. 

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