Legal Docket: Free speech on campus

NICK EICHER, HOST: It’s Monday morning and time to get to work. This is The World and Everything in It for the last day of the month, September 30th, 2019. Good morning, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Before we get started today, a quick bit of housekeeping.

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REICHARD: OK, got it. 

Well, the Supreme Court opens its 2019-2020 term one week from today. That’ll be the first Monday in October.

We cover every single oral argument of the court, some more in depth than others, depending on the issues presented.  

You’ll hear threads of the lawyers’ key arguments and the portions of the justices’ questions to help you get a clear idea of the court in action.

EICHER: The court’s calendar isn’t filled in fully just yet. Of the 50 merits cases, the court’s placed just 41 on the official calendar for arguments. Of course, we know that’ll change, because the court’s typical caseload is about 70 cases.

The path to the Supreme Court is a long one and it’s the rare case that actually makes it. As we’ve said before, it’s a bit like a lightning strike. So today, we’ll talk about some of the squalls in the lower courts. 

But before we get to that: let’s talk about the state of free speech on college campuses. Or more accurately, the disintegration of it.

REICHARD: This is a long-running clash, and it flared up again this month, when Duke University in Durham, North Carolina, revoked official recognition of the group Young Life. That’s a Christian organization devoted to teaching young people about Jesus Christ.

What’s problematic for Duke is that Young Life requires its leaders to refrain from non-biblical sexual relations.

EICHER: Duke is not alone, nor is Young Life.

InterVarsity Christian Fellowship is another Christian group booted off-campus over its unwillingness to update its views on sex. 

InterVarsity’s been around for 75 years. It’s more than 1,000 chapters allow students to get together and learn about the Christian faith. It excludes no one from its activities, though it does require leaders to live out biblical teachings on sexuality.

For that reason, Wayne State University in Detroit kicked InterVarsity off campus in 2017.

REICHARD: Wayne state called the sexuality standards “discrimination.”

InterVarsity sued to stay on campus. Representing the Christian group is The Becket Fund for Religious Liberty, and I decided to phone up senior counsel Lori Windham.

WINDHAM: …and it really is amazing how often you will see universities back down when student groups do stand up and do point out that the law protects them.

Wayne State backed down after the lawsuit and reinstated InterVarsity. The school is still fighting the issue in the meantime.

WINDHAM: My best guess is that there was a Supreme Court case a few years ago that allowed universities to require groups to… accept any student or leader who came along. But that was only if you required everybody to accept everybody. That’s not what happens. They have sororities and fraternities, they have sports clubs, they have honor societies. And so universities think that they have the power to exclude groups at will and it turns out they don’t.

EICHER: A federal court in Michigan gave InterVarsity the green light to continue the case after Wayne State tried to get it dismissed.

WINDHAM: But then to our surprise, Wayne State doubled down and said, yes, we were right to exclude you. We have the right to exclude you any time. We don’t have plans to kick you off right now, but we want the court to say that we have the right to exclude you. And so this case is continuing.

And we will continue keeping track and keeping you posted.

Well, next, I’m afraid we need to issue a warning that the rest of Legal Docket may not be suitable for our youngest listeners. It may be wise, if your children are listening with you, to press pause, review the following content yourself, and then decide how much or how little to share with them.

What we’re reporting on next is an aggressive new legal strategy aimed at fighting human trafficking.

REICHARD: It boils down to a simple premise—that an illegal business relies on a network of otherwise legal businesses: hotels, truck stops, and BackPage.com, and tech companies, for example.

Annie McAdams is a lawyer in Houston, Texas. She’s filed over a hundred lawsuits to combat human trafficking. She uses laws that allow companies to be sued if they benefit from trafficking, intentionally or knowingly.

MCADAMS: Since 1996, we have seen an explosion of human trafficking in our country. And the reason for that is directly correlated to the development of internet. I think law enforcement has done an amazing job, valiant effort, but there’s very limited resources and there’s only so much that law enforcement can do. And that’s really when civil justice stands alongside law enforcement. But what’s really gone unaddressed is the role that some corporations sometimes play in the facilitation of trafficking.

The strategy is starting to make a difference. Corporate America is paying attention.

MCADAMS: We have already seen just on filing a change in corporate behavior, simply just from being contacted by hotels and in house counsel is asking us, what do you think we can do better? We are seeing significant change in the way that hotels are monitoring who’s coming in, who’s coming out, how many people are visiting a room, and also making sure that they’re checking on rooms that are going unattended for an extended period of time.

In 2018, Congress passed into law SESTA and FOSTA. Those stand for Stop Enabling Sex Traffickers Act- SESTA—and Fight Online Sex Trafficking—FOSTA. Those laws make it illegal to knowingly facilitate sex trafficking. It also changed the law regarding online servers.

MCADAMS: We saw groups like Tumblr take down their adult section. We saw Craigslist remove their adult section. And so now that you are exposing these corporations to being held accountable for their actions, we’re actually seeing positive movement towards protecting our children from these harms.

McAdams’ strategy is to create change.

MCADAMS: These cases are not going to be settled. These cases are going to be presented to a jury. A jury is going to get to see the evidence and set the standard for our communities.

That’s key: setting community standards. If citizens refuse to allow unacceptable practices to become normal and everyday activities, then that becomes the local community standard.

Strong community standards also help to crimp one of the supplies of fuel for sex trafficking, and that’s the pornography industry. According to FightTheNewDrug.org, porn is a nearly $100 billion global business. To get a sense of the scale, personal fitness is a comparably sized industry. One builds strength, the other exploits weakness.

But in California, legal activists are fighting back by suing porn producers, distributors, videographers, and directors directly. 

In a first lawsuit of its kind, twenty-two women brought a class-action lawsuit saying they were lured by ads for models on Craigslist. When they responded to the ads, the conversation changed to performing sex acts on video. The women say they were lied to about how the videos would be distributed, about pay, and that they endured battery, and false imprisonment, among other allegations. And the videos were distributed over the internet, where they’ve been viewed millions of times.

That trial is going on now. I called Dani Pinter, lawyer for the National Center on Sexual Exploitation, known by the acronym NCOSI, who is monitoring the trial.

PINTER: So it is a grueling trial. This trial started about a month ago, August 20th, and it’s still ongoing. The defendants are just disputing every single thing  and so they’d been doing a just a barrage of delay tactics.

The pornographers’ defense is that the young women knew what they were doing. They signed a contract. They had no reasonable expectation that anything filmed would remain private after it was sold. And they knew what they were doing was wrong, because they didn’t want their families to find out about it. 

Pinter refutes that defense this way.

PINTER: It’s like the Harvey Weinstein victims. There is an inherent power differential where these men are preying on women who are vulnerable and even if they were adults, these women were very young. They were between the ages of 18 and 22.

Pinter’s organization, NCOSI, develops legislation, initiates lawsuits, and analyzes data dealing with exploitation.

PINTER: The reality is that porn, prostitution and sex trafficking are inextricably linked. When the the porn industry routinely recruits and even pressures women to engage in prostitution, which then fuels the demand for sex trafficking, um, we often see that young girls who are sex trafficked actually have their abuse recorded and put online so their traffickers can profit from each incidence of abuse time and time again. Another really clear result of harm from pornography is within the universe of this case. So the pervasiveness of pornography through the internet, along with the messages of violence and degradation towards women is contributing to a society of young men who have no respect and even contempt for women.

Yet like McAdams, Pinter is hopeful about new strategies to make pornography and trafficking less profitable and more unacceptable.

PINTER: When women and human beings are commodified, their exploitation is inevitable. But the good and hopeful thing is that the tide really is turning. And this case is an example of that, as well. That someone’s actually holding these actors accountable. And whether this case is won or lost, there’s going to be many more lawsuits coming. And NCOSI’s goal is that like the tobacco industry, pornography is going to be just as politically and socially unacceptable.

So the law is finally catching up to the culture here where the exploitation of yesterday is no longer okay.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite, File) In this Oct. 10, 2017, file photo, the Supreme Court in Washington is seen at sunset. 

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