A newly proposed bill in Congress could make a meaningful difference in the fight to restore free speech protections in higher education. The Restoring Civil Rights Attorney’s Fees Act of 2026 would address a practical problem for civil rights and free speech groups suing public universities for the denial of free speech. When universities lose at the preliminary injunction stage, advocates cannot recoup costs and fees. The bill would allow that recovery and, as a result, level the playing field with universities, which can tap public funds to litigate these cases.
We have discussed many cases where universities spend millions in public funds to support anti-free speech policies and actions. A relatively small group of public interest groups have waged these battles with a collection of individual attorneys. Universities know that a case ending in a preliminary injunction will not result in fees or costs being paid to the victorious litigant. This bill would change that.
In my book The Indispensable Right: Free Speech in an Age of Rage, I suggest various ways that Congress could reinforce free speech rights, particularly in higher education. This is precisely the type of measure that can help tangibly support that effort.
The problem that we have faced in the free-speech community is that faculty and administrators have created an echo chamber in higher education by purging departments of dissenting voices, particularly conservative and libertarian faculty. Once in control of these universities, officials proceeded to tap into public funds to not only reinforce this ideological orthodoxy but also finance litigation.
Universities routinely lose these free speech cases. However, they know that cases that end at the preliminary injunction stage will often deny litigants the ability to recover fees or costs. In Lackey v. Stinnie (2025), a divided Supreme Court ruled that plaintiffs who received only a preliminary injunction before their case became moot were not “prevailing parties” eligible for fees under federal law.
The result is the use of public funds to drain the resources of free speech groups and advocates. It also adds a coercive element as universities pressure advocates to settle cases by noting that, if they secure a P.I., the university could fold and leave them without any recovery. They are literally using the public coffers to fight against free speech rights supported by the vast majority of citizens.
Congress can close this loophole and level the field. It will not transform higher education, but it will help guarantee that dissenting faculty and students have a fair chance against state universities.
The legislation is also important because, as I discuss in The Indispensable Right and prior columns, public universities are the final line of defense for free speech. Since the First Amendment applies directly to these universities, free-speech advocates have a greater ability to defend free speech and minority viewpoints at these schools. This can offer students an alternative to private universities as they seek environments with a modicum of tolerance (even if forced) for opposing viewpoints.
It is time to pass the Restoring Civil Rights Attorney’s Fees Act of 2026.
Jonathan Turley is the best-selling author of “Rage and the Republic: The Unfinished Story of the American Revolution.”
Where do all the conservative educators go? Are they so weak they give up and are never heard from again? Are they actually purged or do they wilt and quit rather than finding places their point of view can be appreciated? The salaries at conservative universities must be tragically low due to the oversupply of conservative professors. There must be some evidence of that.
Fro the mot part education has never been a conservative bastion.
Conservatives make thing.
There is an old aphorism – those who can do, those who can’t teach.
Regardless, why are there almost no conservatives in education ? They were driven out.
That can ONLY happen in a public entity or a massively subsidized private one.
Why ? Because there is absolutely nothing in a free market – not even a partly free market that 99% of people agree on universally.
Whenever you see the incredible ideological homogenity that you see in education it inherently means real freedom is missing, and those making decisions are not accountable for their decisions.
Regardless, conservatives have not gone away – there are just few of them in education
Further the world has not changed – you can indoctrinate the crap out of children and young adults
But ultimately when indoctrination meets the real world it will fail.
In the real world people become more conservative as they age.
They become more conservative when they have children.
The become more conservative when they marry
When they buy a home
when they get a job
when they seek to advance in that job.
No matter how badly you education children and young adults, you can not change the way the real world actually functions.
Actually intelligent people do not need much of the school of hard knocks to teach them.
Even ordinary people do better when they are not starting off behind as a result of the idiotic nonsense taught them by left wing nuts.
And unfortunately some people can not learn even from the real world.
But for the majority of people – eventualy reality breaks through and they can not continue to live with the massive contradiction that is left wing ideology.
Good grief, so much BS from John Say.
Conservatives are the ones badmouthing higher education, they do it all the time. Why would they flock to the same institutions they continually bash because it’s “elitist”.?
They haven’t been “purged” or “driven out”. It’s literally the free market at play. The majority of students don’t find conservatism attractive or interesting enough to push for more conservative professors or teachers. Especially when it’s conservatives who are bashing higher education AND mocking students who do go to college or university. It’s a self fulfilling prophesy kind of thing.
There ARE conservative dominated schools. What is funny is professor Turley is not calling for equal ideological representation at these conservative schools.
Conservatives would rather go to the private sector where they make more money and have more freedom to express their ideas without the restraints AND scrutiny that academia brings.
Turley has not named any group of conservatives who have been purged from these schools as he claims. It’s just rhetorical red meat for his false narratives.
John Say is the perfect example of this weird self fulfilling prophesy kind of victimhood mentality. He’s actively bashing higher education as a left-wing nut bastion of useless teaching while at the same time whining about the lack of conservatives in higher education. It’s their own fault for the lack of conservatives in higher education and the lack of new ideas and perspectives their philosophy does not offer. Essentially, they are boring.
That does not mean they can be interesting. Because there are some conservative professors who do make an effort to make their conservative views interesting enough to get the attention of students, but that is rare.
“Good grief, so much BS from John Say.”
GSX: The bullsh1t is on your end.
” It’s literally the free market at play.”
That is a lie. Censorship is an attempt to hinder the free market.
Makes sense. if the injunction causes the defendant to grant the relief sought such that the court case can now be dismissed for mootness, the injunction clearly resulted in plaintiff prevailing.
Many cases end in an out-of-court settlement. These agreement usually bind BOTH parties to non-disparagement going forward, and legally, neither party prevailed. It is viewed as win-win, or a draw.
True, but those cases are not germane to the proposed legislation.
In the halls of justice, the only justice is in the halls.
Unless you sow my lips together, I don’t think Free Speech is under attack and certainly don’t think the Public funding of ‘Litigation’ either ⇆ way is an allowable Tax on the Public. Defund the Universities regarding Free Speech Litigation issues. If Faculties feel so adamant that they need to pursue Litigation, then they should pay for it out of their own pockets.
That would no doubt reduce the whole Litigious atmosphere of Campus speech rights (de-escalate | do not escalate with buying-in through more public funding).
H. R. 10335 is not a viable offer nor solution.
Sp correction – ” Unless you
sowsew my lips together ”sew, not sow – my mistake
I think you misunderstand. The schools aren’t pursuing litigation, the litigation is being pursued against them. They have a right/duty to defend. The point of this proposed legislation is to assure that a successful plaintiff cannot be prevented from obtaining fees and costs when successful when the school folds after an injunction is obtained against the school.
“Loser pays” solves many issues here.
Really, that’s you and me. Con game
Loser pays exists. The issue here is whether a school can avoid being deemed the loser by folding before a permanent order of relief is granted.
There are some enormous conceptual building blocks in play for expanding the attorney fee- and expert witness fee- recovery remedy of 42 U.S.C.§1988. Some examples: One of them is 1st Amendment standing. We see an attack on speech on one of as an attack on all of us. Another is the concern about bleeding the public fisc white by private lawsuits against a government. Another is current financing of speech litigation through private sources that carry for legal counsel an ethical struggle between the agenda in funding agreement terms and the best interests of the client to receive zealous representation within the bounds of law. What does remedy expansion of the statute speak to contingent fee representation in general and private funding along side it in particular? There is the policy question of English v. American attorney fee rules. Fee shifting in simple breach of contract cases is unremarkable in our law. That’s a failure to meet the duty of a contract promise. Is not government infringement of the Indispensable Right a breach of the contract we know as the Constitution? Then there is the value we hold for the earliest possible resolution of disputes. So much so that inside the courthouse door is often required mediation to at least sit down and seek resolution by agreement. The cases resolved that way are remarkable. By extension that makes us look at the other edge of the remedy blade of the proposed amendment. How does that side cut to stop public fisk hemorrhaging defending a losing speech infringement position? Undoubtedly, other conceptual building blocks you see that this writer did not discuss also remain.
This may seem OT but it is not. The lawfare game can more appropriately be called assymetric financial warfare. It is only one facet of the broader problem of attacks on all of our institutions. Why have the enemies of freedom become so bold since Obama was elected? They now think that playing sub rosa no longer matters. They believe they are positioned to win.
Our Congress is nearly completely neutered by corrupt money flows and threats to fund opponents.
Our justice system seems infested with political ideology and increasing threats to further cement ideology by stacking SCOTUS.
Our schools are no longer doing the work of education. From preschool to graduate school, indoctrination is being incorporated at the expense of useful knowledge. Money is wasted on inverted ratios of administration to teachers. Ideologically selected, overpaid administrators outnumber teachers and have made real teachers afraid to resist the corruption of the curriculum. At the university level there is a proliferation of useless, ideological courses and majors and suppression of dissent.
The Left’s destructive, regressive policies will be met with regressive style resistance at some point. It has become abuntantly clear that if the Left ever takes power they will implement unconstitutional policy that will backfire catastrophically. Their reality denying idealism will not be accepted. The modern era of torches and pitchforks nears.
Not quickly enough. Corruption to the core.
A Democrat arranged for financing and installing Hitler in Germany.
A Democrat arranged for American companies to give Oil and Gas to the Nazis to finance the extermination of Jews.
A Democrat invented the Vietnam War to fund the Democrat machine.
A Republican ended the Vietnam War created by the Democrats.
A Democrat honored the America Treaty with France to protect French interests in Vietnam.
Nixon continued the war until the US was overrun. Nixon didn’t end the war; the Vietnamese did.
“Nixon continued the war until the US was overrun.”
– Anonymous
_________________
America fought the Vietnam War for Vietnam.
That was ridiculous.
The U.S. actually has been overrun.
May America start the war for America now and expel all the illegal alien invaders, past and present?
MAAA! Make America America Again!
Add Thomas Watson, CEO of IBM, to the list. IBM sold customized punch cards used in concentration camps and elsewhere to round up the Jews and Murder them. Thomas Watson got a percentage of the payments for those cards. __Edwin Black IBM and the Holocaust
Thomas Watson Sr., the CEO of IBM, was a supporter of the Democratic Party and a close confidant of Franklin D. Roosevelt, though his son, Thomas Watson Jr., was the one explicitly described as a lifelong, active Democrat.
There is no such thing as “free speech” at any Leftist Indoctrination Entities (aka “LIEs”, formerly called colleges and universities). Only IslamoCommuNazi ideology may be taught or discussed at LIEs.
Of course, the greater issue is that LIEs should receive zero federal funds and should have their 501(c)3 status revoked, as they are political institutions, not educational institutions. This would put a major dent in the LIE racket and pave the way for “free speech” returning to campuses.
A Democratic administration defeated Hitler.
A Republican administration is trying to emulate Hitler.
The american people defeated Hitler and to do so – FDR had to abandon his socialist bent and enlist the asistance of the very people he had spent a decade denigrating on the right.
No Trump is not emulating Hitler.
Are all democrats completely insane?
Are you capable of an argument that is not ridiculously absurd on its face ?
Hitler was a fascist. Fascism is a form of socialism
Trump is wisely Anti-socialist
Socialism is the most destructive and bloody ideology the world has seen.
Under Trump Government is getting smaller.Approximately 500,000 unproductive govenrment employees are now productively migrated to productive private jobs.
Trump is too stupid to emulate Hitler. But….he’s definitely longing to emulate his pal from North Korea, dear friend Kim. He does want his monuments to match the grandiose splendor that comrade Kim seems to build with impunity.
John Say’s history is, as usual, wrong.
Adolf Hitler’s party used the name “National Socialist,” Nazi ideology was fiercely anti-communist and anti-socialist. Fascism relies on an authoritarian, nationalist regime that preserves private corporate ownership as long as those corporations serve the goals of the state. Historians point out that Hitler actively purged actual socialists from his party during events like the Night of the Long Knives and privatized major state industries.
As for government size….well…also wrong.
Data from the Office of Personnel Management (OPM) shows that while the civilian federal workforce has shrunk noticeably following the administration’s workforce initiatives (including hiring freezes, Schedule F reclassifications, and the “Deferred Resignation Program” buyouts), the total net reduction is closer to 260,000 to 271,000 employees, not 500,000.
There is no comprehensive economic data showing that these former employees instantly transitioned into “productive private jobs.” Meaning John is making stuff up. Shocking, I know.
His premise that these employees were uniformly “unproductive” is severely undermined by the Trump administration’s own actions. Federal agencies like the General Services Administration (GSA) and the IRS faced severe understaffing and disruptions to basic operational functions following rapid personnel cuts. As a result, the administration was forced to rehire hundreds and thousands of terminated personnel and reverse some of its initial downsizing efforts to keep basic government operations from collapsing. It was an embarrassing situation for Trump and Co.
As is often the case, Republicans and MAGAs have absolutely no idea what the difference is between fascism and socialism.
Trump is ironically also a member of ANTIFA. He is after all anti-fascist.
Just like at https://jonathanturley.org/2026/09/29/justice-and-justice-investments-should-be-blind-the-alito-controversy-raises-persistent-problem-on-the-court/comment-page-1/#comment-2674839, GSX is once again using AI and not understanding what is said. That leads him to copy AI’s hallucinations, or what AI got wrong when it checked the op-eds. Right now, he is desperately looking for a way out of one of his or AI’s many errors.
Jbsay: “Are all democrats completely insane?”
Asked and answered.
It’s like, “Does the sun rise in the east?”
No, Democrats aren’t “insane”. In the legal defense world, “insanity” means that a defendant had a severe mental disease or defect at the time of a crime that prevented the defendant from understanding the nature of his/her actions or knowing that their conduct was wrong.
Democrats know exactly would they are doing, they know what they’re doing is wrong, and they deliberately do wrong and criminal things to accomplish their goals of destroying America and its values of freedom, liberty, and justice. Virtually every evil you see in the world today was created, founded, funded, or advanced by Democrats.
Under Trump the Federal Government still costs as much and now accomplishes far less.
Yes, all democrats are insane.
Accusing Trump of being like Hitler and the Nazis devalued the sacrifices of those who defeated the Nazis. If these people accusing MAGA of Nazism went back in time and met a real Nazi the would pee their pants.
Pure lies. The Democrats have a history of promoting evils throughout America and the rest of the wold. Hitler wouldn’t have even come to power without the Democrats’ aid and comfort.
I am not sure if this will work. I agree with the good professor how universities or other large monies interests will drag out a case and have all of the monetary advantages. I also agree the universities are losing routinely in court. I am not sure if it is good to award money until the case is resolved. I have read the bill and understand it is not instant money. What I do worry about is the flurry of lawsuits or injunctions bound to happen.
I am not personally crying any tears for universities that have driven out opposing academic views or institutions that choose one favored speech over another. As far as I am concerned they have made their bed.
I am worried about the quagmire that is bound to happen as plenty of lawsuits and injunctions get filed over trivial things because someone’s feelings are hurt.
Yet, just maybe universities that are pushing agendas are forced to pay, they may return to a more neutral position instead of forcing their views.
For all of the other points brought up about the other side, this bill does not pick a side, but looks to level the playing field. If I read the bill properly, this is bigger than just academic interests, so it may cover other concerns.
If this is ultimately about collecting after the case and it only closes a loophole, this may not be bad.
It’s the possibility of this becoming more of an ambulance chaser’s dream. Easy money just by filing a lawsuit.
The goal is to use public money to destroy publicly funded institutions. It’s an oligarch’s dream.
The bigger problem isn’t who pays the fees. It’s who bears the risk.
The student has skin in the game. His rights, his time, often his money. Lose, and he loses the fight and what he spent on it. The officials who made the policy spend public money defending it. If they lose, public money pays the student’s lawyers too.
The law supposedly has a middle ground. Officials can be sued personally under Section 1983 when they violate constitutional rights. But qualified immunity generally protects them unless the right was clearly established. And even when personal liability is possible, governments frequently indemnify their officials. The institution often pays anyway.
Hoggard v. Rhodes shows how that plays out. A student at Arkansas State tried to set up a small table near the student union. The school said she needed permission to use its “Free Expression Area.” The Eighth Circuit found the policy unconstitutional. Then it gave the officials qualified immunity anyway.
When the Supreme Court declined the case, Justice Thomas questioned qualified immunity as a “one-size-fits-all” doctrine. He asked why officials who have time to make calculated choices about policies get the same protection as a police officer making a split-second decision in a dangerous situation.
That’s the part that gets me. A university speech policy isn’t written during a traffic stop. It’s drafted over weeks, reviewed by lawyers, debated by administrators and approved through an institutional process. Then the policy gets adopted, challenged, defended, lost, paid for and changed.
The taxpayers paid for every step. The people who made the decision may have paid nothing.
H.R. 10335 fixes an important part of the student’s problem. It gives the student a better chance of recovering the cost of forcing the government to correct the policy. And because those fees come from the university, it changes the institution’s financial calculation. But it doesn’t necessarily change the decision-maker’s calculation.
If the people making constitutional policy decisions bear little of the risk when they get those decisions wrong, how much behavior does shifting more of the cost to the same public institution really change?
That’s the incentive that matters.
Olly, that actually sounds like a great argument. Bringing up the qualified immunity issue does present a kink for this bill’s intent.
However, it is dependent on the case going as far as a trial on 1983 grounds. What is still an issue is getting past the preliminary injunction. A court will still have to address the issue of mootness to determine if legal fees even apply to the entity being sued.
I agree with you about the fairness aspect from the plaintiffs point of view. But I don’t think it will be a successful argument in court when other legal issues are brought up regarding due process for the state and the state’s sovereignty issue.
X, I think we’re talking past each other a little. My concern isn’t really the legal mechanics of mootness, sovereign immunity, or whether fees ultimately get awarded. It’s incentive.
The student has an incentive to think very carefully before challenging the government because he has something personally at risk: his time, his money and his rights.
What is the corresponding incentive for the official who writes or approves the policy?
If the policy is challenged, taxpayers fund the defense. If the government loses and fees are awarded, taxpayers generally pay those too. And qualified immunity can make personal financial consequences for the official difficult to reach.
That’s the imbalance I’m getting at.
I’m not necessarily saying this bill has found the right legal remedy. Maybe it hasn’t. I’m asking a more basic question.
Oath, reputation and job security matter. But none necessarily creates a personal consequence when a court later finds the policy unconstitutional.
So what in the current system gives a government official a personal incentive to stop before adopting a policy and ask, “Am I about to violate somebody’s constitutional rights?”
If the answer is essentially, “The courts will sort it out later,” while somebody else pays the cost of sorting it out, then I think we’ve identified the problem.
I think we’re talking past each other a little. You think huh?
What a heap of bloviated nonsense. Two clowns who think they’re intellectuals paring off in a battle of empty words and concepts.
It’s called “having a discussion”. Perhaps you should learn more about it.
It’s called having a discussion with two AI enthusiasts
Are you jealous because you’re being left out? Awww….poor thing.
I appreciate the compliment. Comparing my arguments to something AI would generate is not the insult you were hoping for. It’s actually more of a self-own. You too could try to form a coherent argument, but you won’t. That just solidifies your blog troll status.
Olly, I get your point, but, from my point of view, how often does a lone student even decides to sue? It is often the case an organization like FIRE or the ACLU that case envisioned by this bill are usually brought to court.
A student will need not only competent counsel, but literally a legal team to make a good argument in court and that does present a significant financial risk.
I agree that incentive is important, but it also brings up the risk of abuse and frivolous suits by lawyers looking to make a quick buck.
But..I think mootness is an important issue because the incentive of this bill is basically to add consequences to the act of suddenly correcting whatever policy is in dispute before any argument on the merits is made forces the school or government entity to pay for the plaintiffs fees. What I don’t get is what if the school chooses not to drop or change the policy and fully litigate the case and the student loses?
I get how this would apply to schools, but this bill also would apply to police officers, police departments, city councils, etc. it’s guaranteed they would fight it and likely get to the point where eventually the courts rule the law is unconstitutional in some way.
But…I do agree with your view about how the risks are evaluated and how they would force school officials and government staff to think more carefully. It’s a valid consideration.
“What is the corresponding incentive for the official who writes or approves the policy?”
Like any policy decision they could see the majority of the student body protest and shut down the school, make nasty headlines, convince parents not to send their children there, or convince students to go elsewhere. The staff and the educators could also make similar decisions, finding other jobs. Others in the administration may call for that person’s removal as could the board of directors.
Wow! an actual rational post from X
Kudos
It’s not from X. It’s from AI.
Most such suits are brought with private money backers using students as a stalking horse. The students have nothing to recover because their expenses, legal and otherwise, are paid by the backers.
Sounds good to me! Without our 1A and 2A we’ve lost everything. I’ve been a free speech absolutist since high school – Godspeed on this.
There are also issues with some of Turley’s characterizations which are, as usual, exaggerated or just outright false.
Turley complains that universities “tap public funds to litigate these cases.” However, his solution is to force those exact same public funds to pay the private attorneys of advocacy groups. When a public university pays hundreds of thousands of dollars in attorney’s fees, that money is directly diverted away from student services, academic programs, and financial aid, ultimately penalizing the taxpayers and students who had nothing to do with the policy. However Turley doesn’t seem to know how public universities deal with litigation.
Public universities are generally self-insured or covered by state risk-management pools, and their legal defense is frequently provided by the State Attorney General’s office or institutional legal counsel already on salary. They are not pulling millions of dollars out of classrooms specifically to finance “anti-free speech” agendas. Furthermore, the bill applies to all civil rights cases under 42 U.S.C. § 1988—meaning it affects underfunded public transit authorities, local police departments, and small public school districts just as much as wealthy elite state universities.
I would be in favor of this bill if it made local police departments liable for attorney fees in cases brought by plaintiffs on any civil rights violations. However I would suspect most police departments would challenge this new law and make the case for state universities since Police departments are pretty zealous about “winning” in court by applying the exact same “loophole” to avoid trial in cases the would clearly lose. It’s more of a double edged sword.
He explicitly links the necessity of this bill to administrators having “purged departments of dissenting voices, particularly conservative and libertarian faculty.” A common tripe by Turley backed by zero evidence.
He implies that universities utilize a deceptive “escape route” by forcing a preliminary injunction (P.I.) and then folding to purposefully leave advocates broke.
Under Article III of the Constitution, federal courts are strictly forbidden from ruling on “moot” cases. If a policy is changed and no longer affects anyone, the case is legally dead. It is misleading to frame a core constitutional limitation on judicial power (the “Mootness Doctrine”) as a sneaky tactical loophole invented by university administrators.
The Bill does not address the issue of ‘mootness’ because before the parties can claim to be the “prevailing party” with the new definition a court will have to grapple with the “mootness” issue first. If this bill passes it is guaranteed that it will face significant challenges that in the end could undermine its original intent. It’s a good idea on paper, but in reality it is much more problematic legally.
I am beginning to believe that “X” “George” is not the LGBTQ misanthrope that he manifests to be, but rather, an employee of an AI entity, here to sound cynical and argumentative simply to trigger responsive and contrary content to feed AI models. He appears to be a shift worker and often creates arguments so vapid that they are ignored. His condescending approach to Turley is a big giveaway, and I am NOT going to respond with SCOTUS case law and Congressional prerogatives to shoot holes in his nonsense.
I suggest that EVERYONE on this blog ignore “X” (and when he gets his occasional “like” upvote, we will know where it came from_. Don’t be tempted to respond in substance.
It’s funny that all you of is complain and whine that I post something. This is a legal blog where anyone can being up an opinion, point of view, counter-argument, refutation, criticism, and even mockery and all you can muster is “avoid this guy because he’s offering a different point of view”.
You don’t offer anything worth of substance to any discussion other than put down others and whine.
Seems you’re taking the critic rather personally. Listen, you put yourself in the internet, so stop whining.
Fact is X, you don’t offer anything of substance to any discussion other than put down others and whine, challenge them to refute your piles of disjointed sentences and words that make no sense.
X, sorry to have to break it to you, you are not an intellectual, you have no credentials or credibility. A poseur.
LOL!! I don’t take it personally. On the other hand I know you do. You’re clearly obsessed with my posting.
It’s clear you don’t know how to read. So you compensate that failure with insults and whining about things you cannot refute or even discuss rationally. It’s pretty sad.
intellectually-lacking X,
Did it ever occur to you that the anonymous “you”*** that you (X) keep referring to, are actually MULTIPLE people sick of your AI garbage? And LOL that you think we read it. All we need to see is your first sentence, pretending you are equal to Turley, to see where you want to go. Immature, low intelligence, bitter and resentful, that is what X is.
*** = “You’re clearly obsessed with my posting,” says X or George.
You’re just upset about the fact you offer nothing. So you lash out and whine and complain.
FYI, your massive projection is so over the top. You’re definitely overcompensating for your shortcomings.
Besides it’s just you. It’s easy to tell. LOL!!!
Same ole, same ole same ole response from X, like a broken record
Notice that he FAILS to address ANY of the very specific call-outs addressed to him:
member of LGBTQ?
working with AI to build content?
Shift worker?
non-lawyer?
resentment toward Turley in particular?
X can try to argue that these are not substantive questions, but he BEGINS more than half his posts with UNPROVOKED insults to Turley, who is his superior. LOL and ROLF are his pablum.
aw, see how that works, georgie
Amen.
Oh boy. This is a good one. I will grant Professor Turley credit for his argument in support of this bill. I will freely admit it makes sense legally, from his point of view , and it also makes sense from the perspective of the plaintiff because they take a huge risk with the legal fees associated with suing a state university. It would, as Turley stated “level the playing field”. He’s not wrong on that and I agree with him. However… given my nature, there are indeed a few issues that this bill would face if it were to pass.
After researching the bill and its intent. I spotted a few flaws that may present a problem further down the road. First the bill does not just apply to state universities it also applies to any state government entity. Police departments, public transit, city councils, and some Federal organizations not deemed immune by the supremacy clause.
If a state university is sued under H.R. 10335, its primary defense would rely on the Eleventh Amendment, which grants states sovereign immunity from being sued for monetary liabilities in federal court.
Public state universities are considered “arms of the state”. A university would argue that while Congress has the right to rewrite statutory rules under 42 U.S.C. § 1988, it cannot override constitutional sovereign immunity. They would claim that forcing a state institution to pay massive financial penalties (attorney’s fees) over a case that has already been resolved and mooted violates the state’s sovereign dignity.
State universities could argue that H.R. 10335 unconstitutionally forces federal courts to act outside their boundaries.
If a university voluntarily rescinds a speech code, the actual constitutional violation is gone. The university would argue that under Article III, the federal court no longer has an active “Case or Controversy”. Therefore, if the court holds a brand new, prolonged “mini-trial” simply to determine whether the university’s policy change was a direct result of the lawsuit (the “catalyst theory” revived by Section 2(d)(3)), the court is expanding its own jurisdiction over a dead issue. The university would claim Congress cannot legislatively force a federal judge to keep jurisdiction over a moot case solely to award money to lawyers.
Under Article III of the Constitution, federal courts only have jurisdiction over active “Cases or Controversies.” If a defendant changes their policy and grants the plaintiff everything they want, the legal controversy is dead (moot), and the court loses jurisdiction over the core merits of the case. The bill attempts to bypass this loophole by redefining what “prevailing party” means. But there’s a problem with this. In order to “win” according to Turley the “prevailing party” would be legally the “victorious party”.
A preliminary injunction is, by definition, preliminary. It is an emergency, temporary freeze of the status quo based on a prediction of who might win later. It is legally misleading to call a plaintiff “victorious” on the ultimate merits of a constitutional case based solely on an emergency order. True victory requires a final judgment or a binding consent decree—both of which already guarantee fee recovery under current law.
There are plenty of issues that a university of state organization a bring up and prolong the case which also means any free speech ‘violation’ is going to remain as long as the case is being litigated for likely years.
This is the kind of serious legal analysis this blog site was known for when first started by Prof. Turley.
True. And I am beginning to believe that “X” “George” is not the LGBTQ misanthrope that he manifests to be, but rather, an employee of an AI entity, here to sound cynical and argumentative simply to trigger responsive and contrary content to feed AI models. He appears to be a shift worker and often creates arguments so vapid that they are ignored.
I suggest that EVERYONE on this blog ignore “X” (and when he gets his occasional “like” upvote, we will know where it came from_. Don’t be tempted to respond in substance.
No way can you call that serious legal analysis . First, the commenter is not a lawyer, it’s obvious. The points are incomplete and outright wrong. It smells like AI. Also, recall he admitted numerous timers that he is not a lawyer. It shows. It is in fact a poor attempt at sounding legal using AI. Which one I can’t tell. Before you accept that comment as legal analysis, do your own investigation. You’d be better off and maybe learn something.
You don’t have to be a lawyer to present a legal point of view.
Why don’t you present YOUR case and argue why my argument is not sound or valid. At least I present way more than you do.
It is NOT your argument. It is AI’s. Get it?
Originality aside, the argument has been presented and should be responded to based on the validity or lack of same of the argument rather than dismissed because the argument isn’t wholly created by the presenter.
Nope, it’s entirely my argument. What is evident is YOU have no argument.
A new flavor of ad-hominem attack?
“Why don’t you present YOUR case and argue why my argument is not sound or valid. “
If he does a good job, you will run away like here… https://jonathanturley.org/2026/09/29/justice-and-justice-investments-should-be-blind-the-alito-controversy-raises-persistent-problem-on-the-court/comment-page-1/#comment-2674839
Pbinca, it used to be. Now it’s just a forum for the intellectually lazy and those who are here just to insult others and demean based on party affiliation.
Turley has become more involved in rage-baiting/ occasional good argument. Whatever brings in more traffic is more important than boring legal arguments that ‘smarter’ people would appreciate. But it is what it is.
“intellectually lazy and those who are here just to insult others”, which one may state, exactly what you’re doing X.
Who did X insult in the analysis?
poor X ^ reverts to “anonymous” when questioning Mary.
LOL!! That was not me. But you were definitely “Mary”. It’s so obvious.
Who did X insult in his analysis which you now criticize without basis?
“I will grant Turley credit for his argument…”
Who are YOU, little X, to think you are in a position to “grant” your approval or disapproval to Turley?
Don’t come back with your threadbare catchall, “fair game.”
FAIR game, of course, means equal sides…….
Wow, you sound so triggered. The audacity of giving professor Turley credit is too much for you? Heavens to Betsy what could be worse? That is not supposed to happen according to you. Right? Saying it’s a good idea? How dastardly.
I bet your knuckles turn white when you clutched your pearls.
OK, P sues seeking, for example, a change or abolition of a speech code. The court grants a PI, indicating, as you note, the likelihood of P winning on the merits. D then makes the changes in said code sought by P and then moves for dismissal of the litigation based on mootness which is granted. Hasn’t P won, i.e. isn’t P the “prevailing party”? Yet, P is stuck for the fees and costs required to modify D’s conduct. This proposed legislation simply recognizes the reality that p has prevailed and that P’s damages —- fees and costs —- should be borne by the losing party.
Since we cannot necessarily predict what the specifics of future cases will be we should concentrate on making both sides more equal in court. We assume the left might be the main culprit in these cases but that is not assured and right wing administrators could also suppress views. Work just to make the sides even irrespective of whether they are left or right wing in their origination.
There are tens of thousands more potential plaintiffs than there are universities. How more unequal can the university already be? As it is, the plaintiffs are usually funded by millionaires to perform an attack on a university over some ideological concern that has more to do with undermining confidence in institutions than damage to anyone’s rights.
One can see that attitude in Turley’s claim that there are purges in higher education as opposed to the truth that conservatives are simply not competitive. If they were then they would regroup and create their own conservative institutions of higher learning and draw those demanding a conservative education. The very small number of such institutions indicates a lack of consumer interest. Note that the applicants will be high-school students and therefore not subjected to any college brainwashing.
I strongly advocate allowing the marketplace to appropriately punish universities that deliberately impede free speech. There is a reckoning coming soon for those schools on several fronts, I prefer that it be allowed to wreak havoc on them unimpeded by any legislative action (that could be weakened or perverted in the fine print during debate and passage: we have seen that happen far too often), no matter how well-intended..
I’m wondering if any one us us here have restricted free speech at home?
Prof. Turley argues in his “The Indispensable Right” that natural law gives every voice the right to an audience. If you make the generous assumption that every voice is well-meaning, well-informed, authentic and willing to take responsibility, then this somewhat makes sense. You might just be disinterested.
The bigger problem with this theory is that those assumptions don’t describe the human condition.
Freedom of speech meets a natural counterforce in freedom to choose what to pay attention to. Is making the choice to not pay attention “censorship”?…..no, it’s filtering. I know of no human group that is functional in any capacity who listens indiscriminately — who hands the mic to the immature, the boastful unprepared, the devious conniver, the senile rambler or the imposter.
Turley’s radically unhinged definition of free speech doesn’t jibe with the right of the listening group to manage an orderly, productive conversation. It cedes unearned attention to the disruptive element who ruins the emotional temperament (atmospherics) essential for complex problem-solving.
Turley’s definition leads to human groups beset by paralysis, dysfunction and regrettable group decisions. Deciding who deserves listening to under what circumstances is a more accurate statement of natural law.
Pbinca, great point!
pbincausingAI: don’t worry. No one on this blog will ever consider verbose you as the one to resolve this “problem.”
I don’t use AI when writing comments. Stop reaching for the ad-hominem attack card. It makes you sound like the way progressives argue — shallow, accusatory, full of hubris.
Turley’s backers have seen that their message is generally unacceptable to a large portion of the population and the desire of those backers is to force an unreceptive captive audience to have no escape from it.
“human groups beset by paralysis, dysfunction and regrettable group decisions” is the goal of those backers. It makes their take-over of the country much easier.
“Turley’s radically unhinged definition . . .”
The only thing “unhinged” here is your (yet again) butchering of JT’s argument.
To whit: “. . . natural law gives every voice the right to an audience.”
He in fact (properly) argues the exact opposite. 1A does *not* include the right to a platform.
Learn how to read. And get a conscience.
Universities have become microcosms of a single party state. They stack the deck against outsiders, i.e. faculty and students that object to the local politics. They use existing tools to do so, including tenure, promotions, courses, and salary to do so. One reason for this is that the measure of achievement at universities is vague. It is difficult to measure teaching and research abilities. Like the typical one-party state, this allows loyalty to rise. Ultimately, only students accepting this will apply, and only faculty in agreement will consider applying. Consider this notion of the one party state as similar to a monastic environment where everybody falls in line.
The passage of this legislation may remedy a few cases, but its global effect will be small. Sorry to say.
Interesting. Do you have any proof that conservative universities and colleges don’t restrict speech?
So one needs to prove a negative. How about you just name one that didm
I attended LSU in the early 70’s. There was an area in front of the student union that was dubbed Free Speech Alley where anyone who chose to could stand on the steps to anyone who cared listen. David Duke was a frequent speaker there. He never garnered an audience to my recollection. Most students simply passed him by without pause on their way into the union for cheap beer, free popcorn and a classic movie. Free speech was not a problem back then.
Show me a lawsuit brought by a leftist against a conservative dominated university. Conservatives by definition respect the rights of free speech even if we find it offensive. Personally I would like to see this site add an Ignore option so i could chose to not see your comments which i find off topic, distracting, juvenile and a diversion from the conversation.
Show me a conservative dominated university that isn’t also a religion based university that would cry like a baby over religious freedom protections.
Restricting speech can be as simple as a conservative college (e.g., Hillsdale College) not inviting Ibrim X. Kendi to speak. Call it lack of interest, that’s a form of restricting who the student body listens to. According to the theory of natural law put forth in “The Indispensable Right”, lack of interest in hearing a speaker is censorship —
a radically unhinged conception of public communication quite detached from common sense.
Yes, all colleges naturally restrict visiting speakers to those they are interested in hearing from.
Hang around any large university and you’ll be amazed at the variety of guest speakers being hosted.
Here’s a telling Google search: “How many colleges and universities blocked Turning Point USA in the past year?”
Jun 25, 2026 · At least 14 Turning Point USA clubs were blocked on college campuses this school year. As of this writing, at least six remain blocked. There are about 6000 colleges and university campuses in the US.
So, yeah 999:1000 are NOT blocking TPUSA. Turley is pushing a narrative with no quantitative reasoning behind it. For a professor of law, that is not inspiring. Were colleges flirting with “woke” 10 years ago? Yes, many were. But there is such as thing as clinging to a grievance when that issue has largely passed.
“According to the theory of natural law put forth in “The Indispensable Right”, lack of interest in hearing a speaker is censorship —”
Repeating a lie countless times doesn’t make it true. There is no such argument in JT’s book.
The motivation to enact such legislation is compelling. However, something deep within me screams: Don’t Do It! In simplistic terms, two wrongs don’t make a right. Our Founding Fathers purposely rejected the then-existing British law of the land that made the loser pay the winner’s legal fees. They did so for a reason. They cherished, as a hallmark of our new nation, the opportunity for every person of means and every person not of means to be able to afford access to our judiciary. That’s a core American value, and it should not be thrown over because revolutionaries take advantage of the fact that suing them is too expensive. If we enact such legislation, we’re letting go of American values … we’re letting the revolutionaries win. No. Please, let’s not do it. Instead, let’s do what common sense hands us as a solution … free of charge. Let’s stop government subsidies to higher education. Let’s give government contracts elsewhere. Let’s not bring higher education revolutionaries into government positions. Let’s take away their tax-exempt status. Let’s stop sending our children to them, to be indoctrinated. Imagine every higher education indoctrination institution having to pay the same property taxes as you and me. Common sense can show us the way. Please, let’s not toss aside our foundational principles.
I’d like to clarify my thinking. Imagine a student (leading his like-minded buddies) who persistently interferes with a professor’s attempts to present in-the-classroom lectures to his students in favor of President Donald J. Trump and MAGA … and who succeeds in stifling the professor. In other words, imagine a student who persistently preventing a professor from exercising his right of free speech as a part of his job at a university. Imagine the university (and the professor) suing the student in a long, expensive lawsuit … and winning. Imagine the student having to pay the university’s legal fees … hundreds of thousands of dollars perhaps. Does that sound like a good idea? Does that sound like America?
Send the student to the time-out room. But realistically speaking, you do not know what you’re talking about.
Now imagine that it was a professor who was trying advocate his love and admiration for President Joe Biden, and it was a student who loved and adored President Donald J. Trump and MAGA.
In what class is this part of instruction? What course would political posturing be part of accreditation?
I see your point but at a university that is willing to sue the student (an extreme rarity I would guess) the university has another option. They can expel the disruptive student. The problem is the universities have a disproportionate legal advantage against individuals that might sue to protect their 1st amendment rights. Seeking vindication of one’s rights against a an organization with vastly greater resources including public funding is a David vs Goliath match. The university can end the suit with modest cost by a PI which amounts to less than a slap on the wrist and promise to change its ways which will likely not happen. This reform would attach some real risk to violating the free speech rights of students and professors.
I share your interest in “another option”. That is my point. Instead of throwing out a founding American judicial principle, there are “other options” … as I suggested in my original comment. The only reason why a bully has power is that we give it power. In my own small way, that is what I’ve done. I don’t donate to my alma mater (University of Pennsylvania), I decline invitations to alumni events, I decline invitations to join The Penn Club, I terminated my free subscription to its alumni magazine, and I instructed it to remove my name from all it’s email and mail lists. Imagine if my behavior were in the majority. Imagine if Penn had to pay property taxes on the land where it built the Penn Biden Center with money from China. Imagine if Jews didn’t send their children to Penn, where (according to the testimony of Penn’s president before Congress) the Code Of Conduct permits mobs to take over the campus and harass Jews.
No, that’s not America. What would actually happen is the student would be disciplined up to and including expulsion and the prof would not be silenced. You are positing a hypothetical that would never occur as the uni has means to rectify the problem w/o litigation. Then, perhaps the student would enlist FIRE or similar group to pursue litigation and we’d be back to the reality rather than the hypothetical.
“What would actually happen is . . .”
Exactly.
In 25 years, I never heard of such a case or even an administration considering such a case. Disruptive students come with the territory. There’s always a process and a student Handbook for handling disruptive behavior, usually: Prof talks to student privately. If that doesn’t work, the problem is kicked up to the dean of students. If that fails, the student is removed from the course. If there’s a pattern of such disruption, the student is suspended or expelled.
Hypothetical examples, to be effective, must bear some relationship to reality.
“Imagine a student (leading his like-minded buddies) who persistently interferes with a professor’s attempts to present in-the-classroom lectures to his students in favor of President Donald J. Trump and MAGA … and who succeeds in stifling the professor. ”
In what class is this part of instruction? What course would political posturing be part of accreditation?
If one can’t sue the US Gov. for legal fees (Baker), then why should a private person sue a university for legal costs (i.e. free speech) when the university is an agent of the US Gov., dispensing gov. funds?
“Let’s stop sending our children to them, to be indoctrinated.”
How weak their upbringing must be to be so easily indoctrinated.
“When universities lose at the preliminary injunction stage, advocates cannot recoup costs and fees.” (JT)
Apparently, the offending colleges use two (slimy) tactics to avoid paying those “costs and fees:”
1) Court issues a PI. College then changes its unconstitutional policies. The case becomes moot. Thus plaintiff cannot demand costs and fees.
2) Court issues PI. College then runs out the clock. Case becomes moot. Plaintiff, again, cannot demand costs and fees.
H.R. 10335 should include this element: If a defendant in a free speech case uses either of those slimy tactics, then the defendant is liable for treble damages — on the grounds that “the defendant acted willfully, maliciously, or with deliberate disregard.”
You just repeated Turley.
I would suggest that example 1 is far from being a slimy tactic. In issuing the PI, the court has indicated that P is likely to prevail. Rather than continuing the litigation, D folds. Makes sense that rather than being obstinate and engaging in your tactic 2, it accepts reality and institutes the relief sought immediately, This is a win for P. The question here is whether the win should be recognized as such for purposes of who bears fees and costs.
Congress is unable to pass the most rudimentary voter identification bill, something that every major country in the world requires for voting. There is no chance they pass something like this. As a result, the far left will continue to use public funds to attack free speech and foster discrimination.
Do conservatives use “public funds” to litigate free speech cases? Or congress can congress stipulate via a bill what funds a uni. can use to litigate – no public funds? Or require they use endowments? All unlikely to pass. As thi swill too will fail. Oh woe is us!
@Anonymous
That you seem to think ‘conservatives’ (nay, anyone even a millimeter to the center of Mao, or anyone that has made their own way through life through their own ability and self-determination) are some other kind of lower life form tells me, and us, you never had the plot to begin with, let alone could’ve lost the plot. Prejudice is prejudice and that is what you are: small minded, ignorant, and prejudiced. Arm bands or white hoods were created by the likes of you. Heil, Anonymi! Sieg heil, Anonymi!
Possibly the wrong Anonymous; if so, my apologies. You ‘good’ anonymous posters should really, really consider creating anonymous user names. I don’t know why you don’t. In this format it is six and half dozen from posting purely anonymously. 🤷🏻♂️ Anyway, this was for the likes of George, not the salient folks.