Month: December 2022

Prof. McConnell is one of the top First Amendment law scholars in the country, and I was delighted that he passed along this item:

Much of the commentary on today’s argument in 303 Creative starts from the premise that the case pits free speech (or maybe religious freedom) against LGBTQ rights. The headline in The Economist reads: “A new Supreme Court case may dampen protections for LGBT people.” Anyone listening carefully to the argument will discover that this framing is off the mark. Both sides in the argument were peppered with hypotheticals—some of them bizarre—about other possible scenarios if the Colorado law that has been interpreted to require a web designer to use her talents to celebrate a same-sex wedding is upheld. Or struck down. The hypotheticals involved all manner of speech on one side or the other of questions related to discrimination of one sort or another—religious discrimination, political belief discrimination, pro-LGBT advocacy, and any other messages you can imagine that involve one group favored over another.

One thing is clear from the argument: 303 Creative is not about whether protections for LGBT people will be dampened. The decision will apply across the board. The question is whether civil rights protections properly include the suppression of speech that disagrees with legal norms, or compels speech that celebrates those norms. Alternatively: do artists (including web designers) have the freedom to depict what subjects they wish, and how—even if they take money for doing it, and even if their perspective is hurtful (to some people)?

One of the most telling exchanges during the argument involved a hypothetical from Justice Barrett, who asked the Deputy Solicitor General Brian Fletcher (whom I consider a friend: full disclosure), supporting the Colorado law, what would happen if the shoe were on the other foot—i.e., what if a gay web designer declined to create a custom website for a Christian organization that advocates for traditional marriage? Could the state compel such a person to design such a website?

Remarkably, Brian responded that the two cases should come out differently. That is, Colorado can compel a Christian to design a custom website celebrating a same-sex marriage, but cannot compel a gay person to design a custom website advocating for traditional marriage. His reasoning for this answer reveals the fundamental flaws in the government’s position.

According to the Deputy Solicitor General, declining to design a website for a same-sex marriage is inherently a form of “status discrimination,” which the government can treat as a form of “conduct” (not speech) and therefore compel or suppress as it sees fit. But declining to design a website promoting traditional marriage is discrimination based on the message (not status) and is therefore protected speech.

There are several problems with this argument. First, it embraces a blatant form of viewpoint discrimination. Whether an expressive activity is “conduct” that discriminates based on “status,” or instead is “speech” on the basis of “message,” and thus protected, cannot depend on which side of the issue you are on. It is hard to imagine a regime more antithetical to the principle that the government must not favor or disfavor speech based on its viewpoint.

Second, as Justices Barrett and Gorsuch noted, declining to design a website promoting traditional marriage can easily be deemed “status discrimination,” too. Built into Justice Barrett’s hypothetical was the fact that the organization promoting traditional marriage was doing so based on its Christian beliefs about marriage. Religious beliefs are no less central to the status of “religion” than beliefs about marriage are to the status of being gay. So refusing to design the Christian website discriminates not only based on the message, but also based on the religious beliefs of the person seeking to express it. In other words, the message (celebrating traditional marriage) is inextricably intertwined with the religious beliefs of the customer requesting it, just as the government claims a message celebrating a same-sex marriage is inextricably intertwined with the status of the individuals requesting it.

Justice Alito illustrated this problem with a related hypothetical: What if a Jewish website designer declines to design a website celebrating a marriage between a Jew and a gentile based on the belief that intermarriage is an existential threat to the future of Judaism? The lawyer for the State of Colorado said Colorado can compel the Jewish designer to produce the site. This may get credit for candor. But it also illustrates the troubling consequences of the government’s position.

I am moved to add my own personal favorite hypothetical. What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ’s resurrection—on pain of losing the right to be a florist. The government was forced to concede that public accommodation laws do not always trump free speech and free exercise rights. But where is the stopping point—other than which beliefs are in favor with the government at a particular point in time?

Just last Monday, Vladimir Putin signed a law that blocks Russians from promoting same-sex relationships “or portraying them as normal” in advertising and media, backed by fines up to $6400 for individuals or $80,000 for organizations. We would never do that. But the reason is not the content of the messages being forbidden, but our commitment to the principle that people are entitled to express their own views free of government coercion.

Third, the government’s position is not limited to web designers. It would apply to any speech the government deems “status discrimination.” Thus, speechwriters, singers, painters, photographer all can be compelled to create speech and art celebrating same-sex weddings (but can’t be compelled to create speech and art promoting traditional marriage). The government tried to resist this conclusion on the ground that artists might not be deemed “public accommodations.” True! And important! Never before have expressive services like art and web design been deemed to be public accommodations. It is essential to artistic freedom that artists have the right to choose their own subject and their own perspective—even if other people find their work shocking. (Remember Mapplethorpe?) The fundamental problem in this case is that the Colorado courts interpreted the state law of public accommodation, which is about basic non-expressive services like electricity and hotel rooms, as including the right to compel an artist or web designer to use their creative talent to express something they do not believe. When state courts make this mistake, the First Amendment comes into play as a corrective.

No, the issue debated in 303 Creative is not whether protections for LGBTQ people will be curtailed. It is much smaller, and much larger, than that. Smaller: because all actual protections against discrimination in public accommodations will remain in place. No one has the right to compel other people to use their expressive talents to celebrate their status; civil rights laws have never required this for any protected class and the Colorado law should not have been interpreted to do so. And larger: because the case is really about artistic freedom and the right of people engaged in expressive professions to determine their subjects and perspective. If the State of Colorado can require this web designer to create a website celebrating a message contrary to her sincere beliefs, there will be no end of it.

The post Prof. Michael McConnell (Stanford) on <i>303 Creative</i> (the Web Site Designer / Same-Sex Wedding Case) appeared first on Reason.com.

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You thought Giving Tuesday would last a single day, but—like some kind of Hanukkah miracle in reverse—here at Reason it has somehow lasted for eight days! 

Today is the final day of our annual webathon, where we ask you—our beloved readers, listeners, and viewers—to donate to support Reason‘s journalism. Thanks to your absolutely wild generosity, we have already exceeded our initial goal of $400,000 with the help of two generous matching grants, but there is still one more match burning, so we’ve set our sights higher. If you donate on this final day of our 2022 fundraising campaign, you will double your money thanks to a $25,000 matching grant from a delightful married pair of Reason supporters. 

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The post Thank You for Donating and Everything You Do for <em>Reason</em> appeared first on Reason.com.

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The worst ideas in Congress never die; they just get sneaked into unrelated bills. This week, that means lawmakers are reportedly trying to burrow a bad media protectionism bill into defense spending authorization. It’s called the Journalism Competition and Preservation Act (JCPA), and it’s a doozy of bad incentives and state favoritism.

In short, the JCPA would suspend antitrust rules for “publishers of online content” so they could “collectively negotiate with dominant online platforms regarding the terms on which content may be distributed.” The latest version states that “digital journalism provider(s)” can engage in joint negotiations with large tech platforms “regarding the pricing, terms, and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity.” It also sets up rules for these negotiations and mechanisms for enforcing their terms.

The idea animating all this is allowing media companies to negotiate a link tax.

As it stands, search engines like Google and social media companies like Facebook that link to news articles tend to provide short snippets of these articles under their headlines. This is a benefit to consumers, who can get a better sense of what the article is about, and to media companies. Links to news articles on Google, Facebook, etc. help alert people to articles they would potentially like to read, and the small summaries entice people to click. But in the fantasyland where Minnesota Democratic Sen. Amy Klobuchar (who sponsored the bill) and other JCPA supporters live, search and social companies will pay for the privilege of sending traffic to media entities.

The plan utterly ignores the fact that search and social help online publishers find readers. Instead, it indulges a cartoonish rendering of tech companies as destroyers of journalism and possibly democracy.

Of course, it’s true that search and social platforms have eaten into the ad budgets of online publishers. But the JCPA acts as if media companies are owed this revenue stream. Far from preserving competition, as the bill’s name implies, it actually thwarts it by allowing lawmakers to pick winners (online publishers) and losers (tech platforms).

“It’s cronyism,” commented Jennifer Huddleston, a lawyer for tech-industry group NetChoice. “It provides a special government granted privilege that allows certain media outlets to collude and as a result risks making them more easily influenced by politicians who can take that privilege away.”

“The JCPA fundamentally breaks the concept of the open internet where you can link anywhere you want for free” and “messes with copyright law in dangerous ways by implying a new right to demand a license for links or fair use snippets,” warned Techdirt’s Mike Masnick.

So, the JCPA is wrong on purely ethical grounds and also poses a danger to fair use, to the open internet, and to the free press. It’s also likely to backfire against online publishers—and not just those who participate in negotiations.

Meta, the parent company of Facebook and Instagram, says that if the JCPA passes it will stop allowing links to news websites altogether—a move that could mean less web traffic for all sorts of media and, as a result, less ad revenue.

“If Congress passes an ill-considered journalism bill as part of national security legislation, we will be forced to consider removing news from our platform altogether rather than submit to government-mandated negotiations that unfairly disregard any value we provide to news outlets through increased traffic and subscriptions,” said Meta in a statement. “The Journalism and Competition Preservation Act fails to recognize the key fact: publishers and broadcasters put their content on our platform themselves because it benefits their bottom line—not the other way around.”

Meta’s statement went to accuse the JCPA of “creating a cartel-like entity which requires one private company to subsidize other private entities,” saying that this creates “a terrible precedent for all American businesses.’

If Google and other search engines have to pay to link to certain media websites, it would only be natural for them to start downranking or even entirely excluding those websites. There is no shortage of avenues where similar information can be found—news aggregators, perhaps, or social platforms where people are summarizing news stories.

Media outlets may find that instead of tech platforms paying them to link to their stories, Facebook blocks their stories entirely and Google starts linking to Twitter threads instead.

The JCPA has attracted a diverse range of detractors. “While the JCPA advanced out of the Senate Judiciary Committee on a 15-7 vote last month, moderates and progressives remain split on the bill,” noted Politico in October:

That’s in part due to support from Republicans like Sen. Ted Cruz(R-Texas), who successfully introduced an amendment that some fear will enable the spread of disinformation and hate speech. Others have raised concerns that the bill could undermine copyright law and benefit large media outlets at the expense of small ones — leading to a strange coalition of tech lobbyists, libertarian groups and progressive advocates lining up to oppose the legislation.

Whether the JCPA could pass as a stand-alone measure is unclear. So supporters are reportedly trying to stack the deck by slipping a version of the JCPA into an unrelated bill, the “National Defense Authorization Act” (NDAA).

“Supporters of the media bailout bill have secured the backing of Sen. Jack Reed (D–R.I.), chairman of the Senate Armed Services Committee which oversees defense spending,” according to Breitbart:

This brazen last-minute ploy by supporters of the media cartel bill follows what Politico predicted earlier this week: having failed to secure a floor vote to the bill, the JCPA’s supporters now want to attach it to an entirely unrelated bill.

Should the NDAA route fail, the bill’s supporters may also try to attach it to an omnibus spending bill, another type of bill that is seen as a “must-pass.”

A group of 26 organizations—including the American Civil Liberties Union, the Center for Democracy and Technology, the Niskanen Center, the R Street Institute, and the Electronic Frontier Foundation—issued a letter yesterday urging lawmakers to not attach the JCPA to any pending legislation.

“The JCPA will compound some of the biggest issues in our information landscape and do little to enable the most promising new models to improve it,” the groups wrote before laying out specific issues they see with the bill. Among these are that the JCPA sets “a legal and political precedent that some uses of content that were once free of charge now require payment” and that “large media conglomerates can dominate negotiations, and small outlets would be unheard if not hurt.”

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FREE MINDS

Sigh: The American Civil Liberties Union (ACLU) is siding with the state in a case—before the Supreme Court this week—involving a website designer who declined to build a same-sex wedding website.

The ACLU taking the side of the state in the 303 Creative case in Colorado says a whole lot about how much that organization has fallen. https://t.co/015KI7eVPD

— Jay Caruso (@JayCaruso) December 5, 2022

More background on the case here. More on oral arguments here.

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FREE MARKETS

By how much did Dobbs reduce abortions? Jacobin looked at whether the Dobbs decision has reduced the number of abortions taking place in the U.S., and by how much. “There are two main reasons to doubt that the overturn-then-restrict strategy of the antiabortion movement would make much of a dent in the number of abortions being conducted in the United States,” wrote Matt Breunig:

The first reason is that most of the population lives in states that are not likely to impose significant restrictions. The [Society for Family Planning] data confirms this. Prior to Dobbs, 10 percent of US abortions occurred in states that went on to ban abortion, 16 percent occurred in states that went on to significantly restrict abortion, and the remaining 74 percent occurred in states that have not imposed significant restrictions.

The second reason is that abortion seekers have three ways of getting an abortion: 1) through a formal provider in their own state, 2) through a formal provider in another state, and 3) informally, such as by acquiring mifepristone or misoprostol without a prescription. Yet state laws can only really restrict the first option. When that option is closed down, many abortion seekers will opt for travel or informal methods.

The SFP data partially confirms that this is happening. Between April and August of this year, the number of abortions in states with bans or significant restrictions declined by 12,500 per month, while the number of abortions increased by 7,140 in states without significant restrictions.

Breunig noted that while this appears to be a reduction of 5,360 abortions per month, “many of those 5,360 missing abortions probably did occur through informal methods, like abortion pills acquired without a prescription, that escape this kind of tracking.”

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QUICK HITS

Citing Covid, DHS just announced enforcement of the REAL ID travel requirement for boarding flights in the U.S. has been delayed yet again—this time an additional two years until 2025. The REAL ID Act was passed by Congress in 2005 and originally intended to be in effect by 2008. pic.twitter.com/iwJN5MBAuA

— Dustin Volz (@dnvolz) December 5, 2022

• Today is the last day of Reason‘s 2022 webathon. Please consider giving a (tax-deductible) donation to support our work.

Whoa dudes. @Reason's annual Webathon fundraiser, with 28+ hours to go, just blasted through the HALF-MILLION DOLLARS mark. For the third year in a row.https://t.co/8s8q58NeMG

— Matt Welch (@MattWelch) December 6, 2022

• “A precedent set in the January 6 prosecutions could be dangerous to the public,” warns Bonnie Kristian.

• Are we entering an era of #MeToo reckoning?

• A study published in Child Development “did not find a meaningful association between the age at which kids received their first phones and their well-being, as measured by grades, sleep habits and depression symptoms,” reports Stanford Medicine.

• Celebrating Pauline Sabin, the woman who spearheaded Prohibition’s repeal.

• Reason editors talk about “The Twitter Files,” Matt Taibbi’s report on Twitter content moderation decisions related to Hunter Biden’s laptop and penis.

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A recent decision by the U.S. Court of Appeals for the Fifth Circuit concluded that the funding mechanism for hte Consumer Financial Protection Bureau is unconstitutional because it makes the agency too independent from the political branches. Specifically, the Fifth Circuit concluded that it was unconstitutional to allow a regulatory agency to bypass the appropriations process and, in effect, set its own budget.

As expected, the Solicitor General has filed a petition for certiorari with the Supreme Court seeking review of the Fifth Circuit’s decision. Among other things, this brief argues that the CFPB’s budget is properly appropriated. Yet as Adam White notes in the Wall Street Journal, this contradicts what the CFPB, its creators and others have said about the CFPB’s funding in the past.

[The SG’s] petition, filed Nov. 14, makes a remarkable claim: that the CFPB’s self-funding power is constitutional because Dodd-Frank itself satisfies the Constitution’s requirement. The CFPB and the Justice Department argue that the statute’s grant of perpetual funding, in the amount determined each year by the CFPB director, “indisputably establishes an appropriation under the long-accepted understanding of that term.” . . .

But in making its argument to the court, the CFPB and Justice Department’s joint brief left out a crucial point: Throughout its entire history, the CFPB itself has consistently declared that its funding doesn’t come from “appropriations”:

• The CFPB’s first director, Richard Cordray, testified to Congress in 2012 that the CFPB’s revenues were “non-appropriated funds.”
• The CFPB’s 2013 strategic plan asserted that by “providing the CFPB with funding outside of the congressional appropriations process,” lawmakers had ensured the bureau’s “full independence.” . . .
• Since 2013, the CFPB’s financial reports consistently called the bureau “an independent, non-appropriated” agency. The most recent such report states: “The Dodd-Frank Act explicitly provides that Bureau funds obtained by or transferred to the CFPB are not government funds or appropriated funds.” That report was released Nov. 15, the day after the bureau filed its Supreme Court petition. . . .

The CFPB isn’t alone in describing its funding as something other than “appropriations.” When Congress designed the agency, a Senate Banking Committee report found that a guarantee of “adequate funding, independent of the Congressional appropriations process,” would be “absolutely essential” to the agency’s “independent operations.” That theme has persisted among the CFPB’s advocates in Congress. In 2018, 40 Democratic senators opposed a proposal to return the bureau to Congress’s appropriations power. They wrote that “the CFPB receives its funding from the Federal Reserve, rather than from the Congressional appropriations process” to “ensure its independence.”

In short, the CFPB and its advocates have always understood that its money didn’t come from “appropriations.” This was a feature, not a bug—until it became clear that such “full independence” from Congress’s power was an invitation to constitutional scrutiny.

I suspect that these prior characterizations will be featured int he opposing briefs and will be raised in oral argument if (as I expect) the Supreme Court grants certiorari. As White notes, the whole point of this funding structure was to make the CFPB more independent. Yet these efforts to make this powerful agency independent of both Congress and the President are precisely what raises constitutional concerns.

Just because the CFPB has an unusal funding structure does not necessarily mean that it is unconstitutonal. Other federal entities, including the Federal Reserve, are funded in a somewhat similar fashion. Further, as Will Baude noted here, Zach Price has argued that the Fifth Circuit was wrong, and that the CFPB’s funding structure is misguided, but constitutional. But it is one thing to argue that the CFPB is funded in a constitutional manner. It is quite another to claim the CFPB is not funded the way everyone has always understood.

The post The Federal Government Can't Seem to Decide How the CFPB Is Funded appeared first on Reason.com.

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From Hening v. Adair, decided Friday by Judge Thomas Cullen (W.D. Va.):

Plaintiff Kiersten Hening, a former member of the Virginia Tech women’s soccer team, filed this suit under 42 U.S.C. § 1983 against her former coach, Charles “Chugger” Adair. Specifically, Hening alleges that, after she refused to kneel in support of social-justice initiatives, including Black Lives Matter (“BLM”), prior to the team’s 2020 season opener against the University of Virginia (“UVA”), Adair retaliated against her in violation of the First Amendment. According to Hening, as a direct result of her refusal to kneel while a “Unity Statement” was read over the loudspeakers, Adair berated her at halftime in front of her teammates, and again at a film-review session the following week, for “bitching and moaning” and “doing [her] own thing.”

{On September 3, 2020, the Atlantic Coast Conference’s (“ACC”) Committee for Racial and Social Justice announced that, in addition to creating an ACC Unity Symbol and implementing mandatory “diversity and inclusion training for student-athletes” focused on “anti-racism,” a Unity Statement would be read before every ACC event. This Unity Statement provided: “We, the ACC, are committed to seeing each other as equals, supporting each other, and treating each other with respect and dignity at all times, recognizing that our differences don’t divide us, but they make us stronger.” As this Unity Statement was read prior to the UVA game, all but three of the players and coaches from both teams kneeled in an apparent show of support. Hening and two of her teammates declined to kneel.}

Adair, on the other hand, claims that he was unaware until after the UVA game that Hening had declined to take a knee and that his vocal criticism of Hening at halftime and the following week—during which he never directly mentioned the Unity Statement or her refusal to kneel—was based solely on her poor play. Hening, who had been a major on-field contributor for two years prior to the 2020 season, also asserts that Adair removed her from the starting lineup for the next two games and drastically reduced her playing time in those games because she had engaged in this protected First Amendment activity. As a result, Hening resigned from the team after the third game of the season….

It is well-established that the First Amendment’s protection of freedom of speech includes “both the right to speak freely and the right to refrain from speaking at all.” As a necessary corollary to protect that fundamental right, the “right of free speech includes … the right to be free from retaliation by a public official for the exercise of that right.” To establish a claim for First Amendment retaliation, Hening must put forth sufficient evidence that: (1) she engaged in protected First Amendment activity; (2) Adair took some action that adversely affected her First Amendment rights; and (3) there was a causal relationship between her protected activity and Adair’s actions.

For purposes of his motion for summary judgment, Adair does not challenge that Hening engaged in protected First Amendment activity by declining to kneel prior to the UVA game. But he argues that Hening has not presented a triable claim of retaliation because the undisputed evidence demonstrates that he did not take any action that adversely affected her First Amendment rights, and that, even if she has, there is no causal connection between her refusal to kneel and his subsequent coaching decisions….

The court concludes that there is sufficient evidence in the record supporting Hening’s claim that Adair’s actions, whatever his motives, adversely affected her First Amendment rights. In making this determination, the court applies an objective standard, asking whether “the defendant’s allegedly retaliatory conduct would likely deter ‘a person of ordinary firmness’ from the exercise of First Amendment rights.” In so doing, the court can consider how the alleged retaliation personally affected the plaintiff. But “[w]hile the plaintiff’s actual response to the retaliatory conduct provides some evidence of the tendency of that conduct to chill First Amendment activity, it is not dispositive.” Moreover, “[n]ot all retaliatory conduct tends to chill First Amendment activity[,] … and a plaintiff seeking to recover for retaliation must show that the defendant’s conduct resulted in something more than a ‘de minimis inconvenience’ to her exercise of First Amendment rights.”

A reasonable jury could find that Adair’s conduct towards his former player constituted an adverse action for purposes of her First Amendment retaliation claim. Adair contends that his halftime criticism and comments at the later film-review session were justified based on Hening’s poor play and were unrelated to her pregame refusal to kneel. But as Hening points out, this argument misses the mark because it impermissibly assumes that Adair’s version of the facts—specifically, that his criticism was motivated by Hening’s purported on-field struggles rather than her pregame actions—is true. At the summary judgment stage, the court cannot make this credibility determination in Adair’s favor; its determination is solely within the province of the jury.

Moreover, Adair’s argument conflates adverse action with causation. Whatever his motivations, the court has no trouble concluding that Adair’s conduct towards Hening—publicly chastising her, removing her from the starting lineup, and reducing her playing time—would tend to chill a person of ordinary firmness’s exercise of her First Amendment rights….

{Although Hening was not on an athletic scholarship and there is no evidence that she had higher aspirations in her chosen sport, the type of retaliatory conduct alleged here would certainly have a chilling effect on college athletes generally, especially those who rely on scholarships to offset (or cover) their academic expenses or those that recognize that playing time and visibility will affect their future prospects in the sport or otherwise. For example, a line on one’s résumé that reads “4-year state Division I soccer player” is preferable to “member of Division I soccer team.”}

But to prevail on her retaliation claim, Hening must also establish the requisite causal connection between her refusal to take a knee—i.e., her protected First Amendment activity—and Adair’s alleged adverse actions towards her. This is a high hurdle, and “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury.” … [T]he alleged retaliatory motive must be a “but-for” cause, meaning that the plaintiff must prove that the defendant would not have taken the adverse actions against her absent his retaliatory motive….

Genuine issues of material fact preclude the court from granting summary judgment on this score. As a threshold matter, Adair claims that there is no evidence that he was even aware that Hening stood during the Unity Statement when he harshly criticized her at halftime, but this is belied by the record. Still photographs from the game film clearly depict Adair, who is kneeling on the sideline, looking in Henning’s direction as she remained standing ….

Adair also contends that Hening’s theory of causation is, at bottom, based on rank speculation and self-serving conclusions, both of which, he argues, are insufficient to defeat summary judgment. But a fair review of the record indicates that Hening’s case is based on more than supposition; indeed, ample circumstantial evidence undergirds her claim and gives rise to genuine issues of material fact about Adair’s true motives and actions. The close temporal proximity between the pregame incident and Adair’s halftime tirade against his starting defender (approximately 45 minutes) suggests some causal connection between these two events. And the close temporal proximity between the other alleged adverse actions (harshly criticizing Hening’s performance during a film session and removing her from the starting lineup for the Clemson and UNC games) occurred within two weeks of Hening’s refusal to kneel before the UVA game.

Hening also points to evidence showing that, in the late summer of 2020, the Virginia Tech women’s soccer team, like many organizations and groups, was divided over whether and how to publicly support various social-justice initiatives (including BLM) in the aftermath of the murder of George Floyd. Indeed, an apparent rift had developed over this issue between a large group of team members (mainly freshmen) who openly embraced BLM and a few upperclassmen who did not, causing the freshmen to complain directly to Adair about what they perceived as racism.

Adair later addressed this apparent rift over BLM in at least two team meetings during the preseason. Prior to one, he texted his coaching staff that “some discussion … regarding Black Lives Matter and racial … injustice” had already occurred and that some members of the team “were open and speaking[,] which is great,” but that “some others made side comments later on that struck a nerve with other people.” In off-the-record comments to ACC Network broadcasters prior to the season (which were overheard by a Virginia Tech sports information official), Adair lamented this divide and his team’s lack of consensus on how to support social-justice initiatives. All of this suggests that this apparent BLM- and social-justice divide was far more significant to Adair at the time than he would have the court believe today.

Hening suggests that the “side” of this issue that Adair considered “open” and “great” was the pro-BLM side, and that the small group making “side comments later on that struck a nerve” was the anti-BLM contingent with which she aligned. Although no direct evidence supports this assertion, there is circumstantial evidence from which a reasonable jury could infer it. At a team meeting the following day, Adair encouraged his players to reach a consensus on how to show support for social justice, at one point suggesting that they wear special warm-up jerseys. Immediately after that team meeting, Adair allegedly made snide remarks about the family of one of his players’ preference for “All Lives Matter” as opposed to “Black Lives Matter.”

The student manager who overheard Adair make these comments to the other coaches immediately reported it to the small group of players who were opposed to supporting BLM publicly. And it was no secret among the players and coaching staff that Hening was an outspoken conservative and supporter of former President Donald Trump. Macaulay Soto, the Director of Operations for the women’s soccer team and a BLM supporter, recalled that Hening “was the only one who consistently posted a lot of [conservative] things on her social media.” The evidence of Adair’s apparent views on this issue (as reflected in his alleged criticism of “All Lives Matter” supporters) and Hening’s well-known conservative leanings and lack of support for BLM further support an inference that Adair had a retaliatory motive when he criticized, and later benched, Hening for refusing to kneel during the Unity Statement.

Even though this evidence establishes genuine issues of material fact as to Adair’s motives, he would still be entitled to summary judgment if he could prove “by a preponderance of the evidence that [he] would have reached the same decision … even in the absence of the protected conduct.” In other words, if the weight of the evidence backs his assertion that he would have chastised and benched Hening for her poor play against UVA regardless of her decision not to kneel, then he would still be entitled to summary judgment. But the weight of the evidence does not cut in Adair’s favor, at least at this stage.

The record establishes that Hening was a stalwart defender on the women’s team for two years prior to the 2020 season. She started nearly 40 games prior to the UVA game, including all but three as a freshman, and typically played most of the minutes of those games. But Adair benched her after the UVA game and drastically reduced her playing time. As a freshman, Hening averaged 76 minutes of playing time; as a sophomore, nearly 88. But during the Clemson game, Hening only played 29 minutes, and, at the UNC game, just 5. Ultimately, Adair may convince a jury that this coaching decision was based solely on Hening’s poor play during the UVA game, but the court, viewing the evidence in the light most favorable to Hening, cannot reach that conclusion as a matter of law.

Similarly, Adair contends that Hening’s circumstantial evidence of his alleged retaliatory motives is of no consequence because he did not take any action to retaliate against the two or three other women who joined her in not taking a knee before the UVA game. In other words, Adair claims that Hening’s retaliation claim fails as a matter of law because she is unable to point to a similarly situated comparator who suffered the same fate.

Again, his argument misses the mark. As the Fourth Circuit has recognized (albeit in the context of Title VII), once a plaintiff offers circumstantial evidence of a discriminatory motive, “the case must be decided by the trier of fact and cannot be resolved on summary judgment.” This is not to say that Adair’s apparent non-retaliation against other players would not be relevant or admissible at trial to show that his actions towards Hening were not retaliatory; they likely would be, and the jury might find this evidence compelling. “But at the summary-judgment stage, these additional facts and attendant inferences in favor [of the defendant] do not vitiate the genuine questions of material fact” that Hening, for the reasons explained above, has established to support her claim. “The issue—at this stage of the proceeding—is whether those additional facts permit the court to draw a determinative inference [in Adair’s] favor that [his] motives were not discriminatory.” On this mixed record, the court concludes that they do not, and that Adair is not entitled to summary judgment.

The post First Amendment Retaliation Claim by Virginia Tech Player Who Didn't Kneel for "Unity Statement" Can Proceed appeared first on Reason.com.

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