Last September, Supreme Court Justice Sonia Sotomayor was apoplectic. The nation’s highest court had just refused to grant an emergency hearing on a new Texas law that allowed private citizens to sue anyone who helped a woman obtain an abortion in the state. These private lawsuits could net plaintiffs $10,000 apiece, even if the target of the lawsuit was just someone who gave a woman a ride to the abortion.
Sotomayor, in a scathing dissent, wrote that to circumvent a court from stopping enforcement of the unconstitutional law, “the Legislature took the extraordinary step of enlisting private citizens to do what the State could not.”
“In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters,” she wrote, “offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”
The law was, in fact, crafted to prevent a court from shutting it down before it went into effect. By putting anti-abortion enforcement in the hands of the public, Texas legislators made sure the Supreme Court had little recourse to stop it. Typically, the Court enjoins state officials from enforcing unconstitutional laws. But what if every citizen of a state were deputized to enforce abortion actions through civil litigation? In effect, Texas had crowdsourced its abortion regulations.
Immediately, irate progressives lashed out against Texas’ “bounty hunter” law, with California’s governor, Gavin Newsom, declaring he would set up a similar program for residents to sue individuals who make, sell or distribute weapons already banned in the state. Perhaps Newsom’s point would have been stronger had he committed a scheme to ban something that wasn’t already illegal.
But as much as liberals want to blame conservatives for hacking the judicial system to suppress constitutional rights (and if Justice Samuel Alito’s leaked opinion overturning Roe v. Wade becomes the Court’s actual opinion, abortion may soon be an ex-constitutional right), it is actually progressives who initiated this particular art of suppressio populi.
Chilling Free Speech with Third-Party Censorship
Nowhere is this more evident than in our major colleges and universities, the overwhelming majority of which have set up “bias response teams” to police campus speech among students and faculty. These systems allow students to anonymously report one another for saying or doing anything that makes the offended student blush, even if it happens in a private conversation. The only criterion to report another student to the administration is that some act of “bias” has occurred.
In the schools’ eyes, bias response teams were necessary because old-fashioned university speech codes were being thrown out by courts all throughout the 1990s and 2000s. In the 1980s, major universities began enforcing limits on what students could say, citing the need to dissuade “hate” and “harassment.” Some schools even banned “inconsiderate jokes” and “inappropriately directed laughter.” Most of these speech codes were struck down as violations of the First Amendment.
But the demise of formal speech codes came at the same time student sensitivity to “microaggressions” and “triggers” was rising. So schools that could no longer regulate speech directly began outsourcing the desired regulation to anyone with a smartphone or email account.
Under this scheme, there is no central administrator on campus who has the job of policing public and private utterances. So, schools argue, the bias response team isn’t an official speech code; it simply provides students the opportunity to express their displeasure with other campus members. Further, the schools argue, there is rarely any penalty for expressing a disfavored opinion on campus. The bias response team is simply a clearinghouse that allows a university to understand what is happening on campus.
But in practice, the results are not so innocuous. Writing at The College Fix, I have analyzed thousands of complaints against students and professors, and it seems a modern campus can be likened only to a surveillance state where citizens are encouraged to inform on their neighbors to remain in good standing.
In one instance, a Michigan State student reported his roommate for watching internet videos of conservative commentator Ben Shapiro, claiming the videos were “hate speech.” Similarly, a University of Wisconsin student reported a professor who used the term “sacred cow,” saying the phrase offended people from religions who indeed believe cows are sacred. A University of Central Florida student was reported for a Facebook post calling old people “boomers,” with the reporter saying the word was akin to a “racial slur.”
Rarely are the subjects of these complaints formally punished. But they will often get a call from a campus diversity counselor or have to appear before a panel of administrators to be counseled on their sensitivity. A professor who says something intemperate in class may have a letter placed in his or her file; at public schools, the reports are public information, and faculty who have been subjected to a report can often be tracked down.
In effect, the process is the punishment. In late April, a federal appeals court bitterly criticized UCF’s bias response team, noting that while it had no enforcement mechanism, it still had the power to chill speech. “Neither formal punishment nor the formal power to impose it is strictly necessary to exert an impermissible chill on First Amendment rights—indirect pressure may suffice,” wrote Judge Kevin Newsom, noting that the students targeted for their speech were “teenagers and young adults who, it stands to reason, are more likely to be cowed by subtle coercion.”
Granted, there is no cash “bounty” for students who report professors for saying only women get pregnant. But bias response teams are a tool students and faculty can use to intimidate one another, causing harm to a disliked student or getting revenge on a professor for a bad grade.
The Rise of Bounty Law
Until courts begin to address laws and regulatory programs that suffocate rights by deputizing regular citizens, such schemes will proliferate. Just weeks ago, President Joe Biden’s administration announced the creation of a Disinformation Governance Board, which will presumably follow up on citizen complaints of wrongthink.
The Disinformation Board’s governor, Nina Jankowicz, has vowed it will be apolitical, but just last year she headed up a team at the Wilson Center that produced a report warning of the “impacts of gendered and sexualized disinformation on women in public life, as well as its corresponding impacts on national security and democratic participation.”
And now that they have tasted victory on the abortion front, Republicans will undoubtedly move forward with more restrictions enforced by private citizens rather than the state. A much-publicized new law in Florida that regulates how gender and sexuality are taught in schools is enforced by allowing parents to file lawsuits when their children are taught something amiss. Republican lawmakers in Missouri are pushing a bill, similar to the Texas law, that would allow private citizens to sue anyone helping a state resident procure an abortion, even if the abortion takes place in another state. An Oklahoma Republican is proposing a bill that allows parents to sue in order to ban books from state schools, with plaintiffs receiving $10,000 for every day the offending book remains on the shelves.
If you have spent any time at a water park or music festival, the first thought that pops into your head is likely not, “These are the people whom I want to police my constitutional rights.” Of course, juries are made up of regular people who often get to decide whether your constitutional rights have been violated. But giving private citizens a cash incentive to report one another for behaviors that would normally be constitutionally protected simply sets up a bonanza for trial attorneys. Such a system could also pack the courts with nosy neighbors intent on patrolling each other’s behavior. America would turn into one large homeowner’s association.
Nonetheless, the era of bounty laws is here, and for the time being, they are circumventing the traditional judicial review process. Sotomayor objected to the Court’s failure to block the Texas bill for other, more ideological reasons; but on the “bounty” question she was right. Our constitutional rights don’t disappear when enforcement of those rights turns into a game show.