Sunday, April 30, 2023
Opinion | Disney v. DeSantis: How Strong Is the Company’s Lawsuit? - The New York Times
Disney v. DeSantis: How Strong Is the Company’s Lawsuit?
"To understand why Gov. Ron DeSantis of Florida should lose in his quest to punish Disney for the high crime of publicly disagreeing with Ron DeSantis, it is first necessary to talk about tow trucks. Specifically, it’s necessary to discuss a case about tow trucks and the First Amendment and how it answers a key question: If the government offers some person or entity a benefit, can it also take it away?
The tow truck story begins in the early 1990s in Northlake, Ill. For decades the city had maintained a list of tow truck companies available for use by the Police Department. The list worked simply enough — when the police needed towing services, they simply went down the list before each tow, with the next towing company receiving the next call. While towing companies didn’t have a right to be on the list, once placed on it, the city’s policy was to remove companies only “for cause.”
In 1993, John Gratzianna, the owner of O’Hare Truck Service, declined to support the campaign of the incumbent mayor of Northlake, backing his opponent instead. The mayor then removed Gratzianna’s company from the towing list, and Gratzianna sued.
The case was one of many to raise the constitutional question of when the government is allowed to take away benefits it was never obligated to provide. Let’s take, for example, public employment. Being hired for a government job isn’t a right. It’s a privilege.
But if the government isn’t obligated to hire me, does that mean it can fire me for any reason? Absolutely not. Anti-discrimination laws and constitutional principles prevent it from firing me or punishing me because of my race, sex or religion, for example. And even if I’m a public employee, the First Amendment is going to prevent the government from punishing me when I speak as a private citizen on matters of public concern.
This restriction on the government is a very good thing indeed. There are approximately 20 million government employees in the United States. Government-orchestrated campaigns of censorship and reprisal against its own employees would not just distort the public square but would also disrupt the democratic process itself, inducing real fear whenever employees refused to support incumbent politicians.
But that’s employment. What about government financial benefits? How many strings can public officials attach to their immense financial resources? And that brings us back to O’Hare Truck Service. Justice Anthony Kennedy, writing for a 7-2 majority, quoted case law and reaffirmed a clear constitutional principle: “If the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”
“Such interference with constitutional rights,” he added, “is impermissible.”
Not only is this a correct statement of constitutional law; it’s also a necessarystatement. America’s federal, state and local governments control immense resources. Total government spending is over $9 trillion annually, and those are just direct expenditures. The government also controls the ability to enact tax breaks and other financial incentives for individuals and businesses. And while there are good arguments against governments providing economic inducements and incentives to private corporations, those inducements and incentives cannot then depend on an implied requirement that the corporations agree with the government on matters of public policy. Otherwise, governments could use the power of the purse to create a two-tiered society, granting and withholding government largess on the basis of political agreement.
Make no mistake, the Florida government’s actions against Disney were directly motivated by the company’s disagreement with a policy pushed by DeSantis. Disney’s legal complaint, filed in federal court in the Northern District of Florida, is chock-full of evidence that the governor and other Florida officials targeted the company for one overriding reason: It put out a statement objecting to House Bill 1557, the Parental Rights in Education Act, which sharply restricted instruction on sexual orientation and gender identity in Florida public schools.
Statements from Governor DeSantis and other Republican state officials are remarkably brazen. DeSantis said he thought Disney’s mild opposition — it mainly consisted of a public statement and a phone call from the former Disney C.E.O. Bob Chapek to DeSantis, moves that a number of L.G.B.T. activists considered inadequate — “crossed the line,” and he promised to “make sure we’re fighting back.” He accused Disney of “pledging a frontal assault on a duly enacted law of the State of Florida.”
So what? Laws are not holy writ, and if the First Amendment protects anything, it protects our ability to object to the laws passed to govern our states and our nation.
But those statements were just the tip of the iceberg. State Representative Spencer Roach said, “If Disney wants to embrace woke ideology, it seems fitting that they should be regulated by Orange County.” This statement refers to theinitial punishment chosen by DeSantis and Florida Republicans — the planned dissolution of an entity called the Reedy Creek Improvement District, one of more than 1,800 special tax districts that dot the Florida landscape.
Reedy Creek “oversees land use and environmental protections” in the district, which encompasses Disney World and various adjoining properties. Its Disney-appointed board governed the district, and it helped empower Disney World’s remarkable growth. Florida’s Legislature ultimately yanked control of Reedy Creekfrom Disney, renamed it the Central Florida Tourism Oversight District and handed it to a board appointed by DeSantis.
Disney responded, however, by working with the outgoing board to pass a development agreement and restrictive covenants that would greatly limit the authority of the new DeSantis board.
This action led to Florida’s next round of reprisals against Disney. The new DeSantis board voted to nullify the new contracts, and DeSantis himself mused at how the state and the new board might wield its power to punish Disney: “People are like, ‘Well, there’s what should we do with this land?’ So you know, it’s like, OK. People have said, you know, maybe create a state park, maybe try to do more amusement parks. Someone even said, like, maybe you need another state prison. Who knows? I mean, I just think the possibilities are endless.”
The motivations could not be clearer: The State of Florida is targeting Disney because of the company’s constitutionally protected expression. Or, as Representative Randy Fine, a Republican, stated: “You got me on one thing — this bill does target one company. It targets the Walt Disney Company.”
John Gratzianna and O’Hare Truck Service are far from the only plaintiffs to win a First Amendment retaliation case at the Supreme Court. Prohibitions against government retaliation for protected speech are as clearly established as virtually any constitutional doctrine in American law. But what O’Hare does show us as clearly as any modern Supreme Court case is the idea that denying government benefits is a form of government control, and when it’s done for the express purpose of punishing an exercise of constitutionally protected speech, it violates the Constitution of the United States.
At the beginning of this piece, I said that DeSantis should lose, not that he willlose. Court outcomes are never completely certain, but this much is correct: A Disney defeat would represent a dangerous reversal in First Amendment jurisprudence and cast a pall of fear over private expression. In its complaint, Disney wrote, “In America the government cannot punish you for speaking your mind.” That is true now and will remain so if Disney wins its case. If Disney loses, on the other hand, America’s first liberty will be at risk, and the culture wars will escalate out of control."
How Scalia Law School Became a Key Friend of the Supreme Court - The New York Times
How Scalia Law School Became a Key Friend of the Court
"George Mason University’s law school cultivated ties to justices, with generous pay and unusual perks. In turn, it gained prestige, donations and influence.
In the fall of 2017, an administrator at George Mason University’s law school circulated a confidential memo about a prospective hire.
Just months earlier, Neil M. Gorsuch, a federal appeals court judge from Colorado, had won confirmation to the Supreme Court seat left vacant by the death of Antonin Scalia, the conservative icon for whom the school was named. For President Donald J. Trump, bringing Judge Gorsuch to Washington was the first step toward fulfilling a campaign promise to cement the high court unassailably on the right. For the leaders of the law school, bringing the new justice to teach at Scalia Law was a way to advance their own parallel ambition.
“Establishing and building a strong relationship with Justice Gorsuch during his first full term on the bench could be a game-changing opportunity for Scalia Law, as it looks to accelerate its already meteoric rise to the top rank of law schools in the United States,” read the memo, contained in one of thousands of internal university emails obtained by The New York Times.
By the winter of 2019, the law school faculty would include not just Justice Gorsuch but also two other members of the court, Justices Clarence Thomas and Brett M. Kavanaugh — all deployed as strategic assets in a campaign to make Scalia Law, a public school in the Virginia suburbs of Washington, a Yale or Harvard of conservative legal scholarship and influence.
The law school had long stood out for its rightward leanings and ties to conservative benefactors. Its renaming after Justice Scalia in 2016 was the result of a $30 million gift brokered by Leonard Leo, prime architect of a grand project then gathering force to transform the federal judiciary and further the legal imperatives of the right. An ascendant law school at George Mason would be part of that plan.
Since the rebranding, the law school has developed an unusually expansive relationship with the justices of the high court — welcoming them as teachers but also as lecturers and special guests at school events. Scalia Law, in turn, has marketed that closeness with the justices as a unique draw to prospective students and donors.
The Supreme Court assiduously seeks to keep its inner workings, and the justices’ lives, shielded from view, even as recent revelations and ethical questions have brought calls for greater transparency. Yet what emerges from the trove of documents is a glimpse behind the Supreme Court curtain, revealing one particular version of the favored treatment the justices often receive from those seeking to get closer to them.
The documents show how Scalia Law has offered the justices a safe space in a polarized Washington — an academic cocoon filled with friends and former clerks, where their legal views are celebrated, they are given top pay and treated to teaching trips abroad, and their personal needs are anticipated, from lunch orders to, in Justice Gorsuch’s case, house hunting.
By law, justices may earn outside income from a limited number of sources: book advances and royalties, investments, and teaching. The judicial code of conduct specifically encourages teaching. Many justices have augmented their government salaries, which now hover beneath $300,000, by holding classes at schools including Harvard, Duke and Notre Dame.
But Scalia Law quickly moved to the front of the line, in part by offering generous benefits. For teaching summer courses that generally ran for up to two weeks, Justices Gorsuch and Kavanaugh each made salaries that approached the legal cap on certain outside income, roughly $30,000 in recent years.
The school also creates bespoke programs for the justices in far-flung locations. Justice Gorsuch has traveled to Iceland and Italy to teach; Justice Kavanaugh has taught in Britain. During the first pandemic summer, both justices pressed on with their classes, teaching at stateside resorts. (Only Justice Thomas has routinely held his classes on campus, with two of his former clerks as co-professors.)
“When a justice is with us, we do everything we can to engage the justice with our students,” the law school’s dean, Ken Randall, said in a statement. He added, “Law schools serve students, and their education is undoubtedly enhanced by the justices teaching or visiting or speaking with students.”
At times, the justices’ teaching has intersected with their positions on the court.
Justices Gorsuch, Kavanaugh and Thomas regularly used employees in their chambers to coordinate their outside academic duties, despite a judicial advisory opinion — which the justices say they voluntarily follow — that staff members should not help “in performing activities for which extra compensation is to be received.”
And in a number of instances, the justices’ co-professors filed amicus briefs, trying to sway the court on pending cases, the records show.
A spokeswoman for the Supreme Court declined to comment for this article.
Some of the records reviewed by The Times were obtained through a public-records request, which the university fulfilled only after the court was allowed to review the documents. Many of them were held back or arrived heavily redacted. In a statement, Scalia Law said the court had been consulted for security reasons. (In addition, The Times examined records obtained years ago by the activist group UnKoch My Campus.)
By any number of metrics, Scalia Law’s closeness to the justices has coincided with a striking upswing in its fund-raising and academic standing. The number of graduates receiving prestigious clerkships has steadily increased, and that has helped the school attract higher-caliber students. Scalia Law is now tied for 30th place in the U.S. News & World Report rankings, a big jump in a relatively short time. In the process, it has become something of a hub of conservative legal thought, and legal society, in the capital.
Scalia Law has hit its stride in part by capitalizing on the conservative outcry against “woke” elite institutions of higher education. Having a robust conservative alternative like Scalia Law “adds to the debate,” said C. Boyden Gray, a major donor to the school who held senior positions in both Bush administrations. “It is very healthy.”
Yet to a lesser degree, the school has also been able to entice the court’s liberals: Justice Elena Kagan, who has called for the court’s conservative and liberal wings to rediscover “common ground,” joined Justice Gorsuch as a distinguished guest when he taught his summer course in Iceland in 2021. Justice Sonia Sotomayor spoke on a Scalia Law panel with him the same year.
In late 2019, Justice Kagan emailed a George Mason professor who had clerked for Justice Thomas. “George Mason,” she wrote, “seems a really good place to be.”
Justice Gorsuch may have felt the same way when the law school, courting him in 2017, asked him to help choose the Italian city where, for two weeks the following summer, he would co-teach a seminar on national security and the separation of powers. A memo offered options including Padua, a “first-tier city in a picturesque setting,” Venice, with its “seven-mile-long-sandbar known as Lido” and Bologna, “Italy’s most prestigious academic city.”
In the end, the class would be in Padua, where the law school put up the justice and his family in what a listing described as an “aristocratic,” antique-filled apartment in the heart of the old town.
A draft handbook for the trip, emailed to Justice Gorsuch, made clear that his teaching responsibilities would be limited to the mornings, leaving plenty of time for excursions, including planned visits to Bologna and Florence.
“Fantastico!” the justice responded.
A Bridge to the Court
The rebranding as the Antonin Scalia Law School became official on July 1, 2016. Right away, the dean at the time, Henry Butler, began sending out save-the-dates for a dedication. At the top of his mind: ensuring that justices would be there.
The plan was for a day of celebrations in October, framed as a nonideological tribute to a justice beloved by his colleagues on both right and left. The renaming announcement quoted Justice Ruth Bader Ginsburg praising her close friend as “a law teacher, public servant, legal commentator and jurist nonpareil.”
But there was another aim, to raise money, with the justices as a draw. Justices Thomas and Ginsburg were to speak at a banquet in Washington’s historic Union Station. According to a seating chart, there would be tables named for the justices assigned to them: Justice Thomas (to be seated with Mr. Leo), Justice Samuel A. Alito (with former Vice President Dick Cheney) and Justice Ginsburg (with then-Judge Kavanaugh).
The Charles Koch Foundation bought a $100,000 “platinum” sponsorship; the law firms Kirkland & Ellis and Gibson, Dunn & Crutcher were among those buying gold packages for $50,000, according to the program.
That mixing of the justices and the law school’s fund-raising brought a last-minute inquiry from the Supreme Court’s public information office. The court, according to an email to the dean from one of the school’s event planners, said it could not “clear the program” without confirmation that the dinner was “not a fund-raiser, because Supreme Court Justices cannot be involved in any fund-raising activities.”
Ultimately, Justices Thomas and Ginsburg did not speak, though both attended.
“Damn, this thing has be a lot of work,” the dean wrote to Mr. Leo, then the executive vice president of the Federalist Society, the conservative legal organization, and a co-chairman of the dinner. “But it is huge for Scalia Law (much bigger than the money.)”
Mr. Butler, who retired as dean in 2020, referred questions for this article to Scalia Law. The school said it could not answer them, since they related to Mr. Butler’s tenure.
The law school, established at George Mason only in the late 1970s, had carved out a distinctive place on the right flank of legal academia. Its Law & Economics Center, devoted to one of the pillars of conservative legal thought — the idea that courts must consider the economic impact of the law — had offered training to more than 5,000 federal and state judges. Among the school’s most prominent alumni — indeed its only Supreme Court clerk — was William Consovoy, who had helped persuade the high court to strike down key provisions of the Voting Rights Act.
For all that, a year after Mr. Butler took over as dean in 2015, the law school’s U.S. News ranking dropped to 45th. “Falling out of the top 50,” administrators wrote, “would be a disaster from which the law school would have a very difficult time recovering.”
By then, Mr. Butler had turned to Mr. Leo for help. He was a rising power in the conservative ecosphere, helping to steer money to advance the Federalist Society’s mission of filling the courts with judges who would interpret the Constitution according to the founders’ intentions. In September 2015, the dean sent Mr. Leo a five-year plan rooted in their shared belief that opportunity, and a deep well of donor money, lay in doubling down on the law school’s efforts to become an alternative to the left-leaning institutions that ruled the rankings.
Scalia Law, Mr. Leo wrote in response to questions from The Times, “is a model for what legal education should be in our country — grounded in objective analysis and truth-seeking, respect for the Constitution, and civility and balanced dialogue.”
The windfall, and the way forward, came quickly. About two weeks after Justice Scalia’s death on a Texas hunting trip in February 2016, Mr. Butler and Mr. Leo struck a $30 million deal with donors to rename the school for him.
Ten million dollars came from the Charles Koch Foundation; the balance, the school explained, came from an anonymous donor who had approached Mr. Leo. (The benefactor is widely believed to be Barre Seid, an electronics manufacturing mogul and conservative donor who would later make an extraordinary $1.6 billion contribution to a political group controlled by Mr. Leo.)
The announcement rewound an earlier controversy set off by revelations that gifts to George Mason from the Koch brothers had come with influence over hiring decisions. The Koch foundation, in a statement, said it was deeply committed to “fostering an open exchange of ideas among a diversity of perspectives.”
The double deal was a master stroke.
The money would, among other things, allow the law school to support new research centers organized around areas of special concern for the legal right, including a Center for the Study of the Administrative State and a Liberty & Law Center.
The renaming would be a bridge to the court.
At the morning dedication ceremony on Oct. 6, Justice Kagan spoke on behalf of the court. In addition to the Union Station dinner, Mr. Leo hosted a private luncheon for justices and other V.I.P.s, offering vegetarian or lobster risotto. (“Lobster is great,” the future Justice Kavanaugh wrote, emailing his menu choice.)
In all, the school collected at least $750,000 that day, records show. Seven justices — all but Chief Justice John G. Roberts Jr. — attended some portion of the festivities.
That it could not be eight came courtesy of the Senate Republican leader, Mitch McConnell, who had refused to consider President Barack Obama’s choice to replace Justice Scalia before the upcoming presidential election. When Mr. Trump won, he inherited the opportunity to fill the open seat — with a conservative, drawn from a list of candidates developed by Mr. Leo.
It was also a chance for Scalia Law to fast-track its ambitions.
Wooing the Justices
As Judge Gorsuch moved to the top of the list for the court seat, he convened a war room of confidants to lobby for his nomination and help frame a confirmation strategy. Among them was Jamil N. Jaffer, a Scalia Law professor and founder of its new National Security Institute. Mr. Jaffer had clerked for the judge on the appeals court and counted him as a friend and mentor.
After the Supreme Court confirmation, Mr. Jaffer acted as the Gorsuches’ unofficial relocation consultant, meeting with a real estate agent and touring at least one equestrian estate in Virginia. “Thanks, Jaffer 🙂,” the justice’s wife, Louise Gorsuch, wrote after he sent an aerial video of the property. The justice followed up by asking Mr. Jaffer to arrange a tour for his wife.
Mr. Jaffer agreed to take time off from Scalia Law to join the new justice’s chambers as a temporary clerk. He also began recruiting Justice Gorsuch to co-teach a law school class the following summer in Italy.
In response to questions from The Times, Mr. Jaffer said it was “terrific opportunity” for students to learn from Justice Gorsuch, whom he described as “an esteemed scholar in his own right.” He said he had been glad to volunteer his personal time to help the justice’s search for a home, “as I would for any friend.”
On the faculty, Justice Gorsuch would join Justice Thomas, who had recently completed his first semester teaching alongside Neomi Rao, a former Thomas clerk who would become a Trump administration official and federal judge. That September, Mr. Jaffer sought Justice Gorsuch’s feedback on the draft memo for the Italy program, which laid out why he would be such a prize catch for Scalia Law.
“Justice Gorsuch is, of course, the newest member of the Supreme Court and the youngest to be appointed to the high court in a generation,” the proposal said. “He also holds the seat of the Law School’s namesake, Justice Antonin Scalia, and is widely believed to be a worthy successor to the legacy of that great man.”
The proposal included descriptions of the potential sites, relying in part on advice from Mr. Leo, who could use his “significant connections in Rome and at the Vatican,” should they be required.
Other law schools have hosted justices on expenses-paid trips abroad. New York University, for example, sent Justices Ginsburg and Sotomayor to a conference in Portugal in 2019, though they did not receive teaching salaries. In 2016, Tulane paid Justice Alito to teach in Berlin and Paris, according to his disclosure from that year, and covered his expenses. Notre Dame, which counts Justice Amy Coney Barrett as a longtime faculty member, has recently been vying for the court’s attention, sending Justice Alito to Rome and Justice Kavanaugh to London.
But judicial ethics guidelines require only that the justices make note that such travel took place; they do not have to disclose how much their flights, lodging and meals cost. In Justice Gorsuch’s case, it was not an insignificant amount, according to the records obtained by The Times.
For the justice’s first course in Padua, an email to his staff quoted a price of $3,771 for airfare. During his Iceland class, the school reimbursed him $5,250 for his lodging, in addition to paying his salary. The records show the school spent thousands of dollars more on flights and accommodations for special guest speakers — the justice’s friends, colleagues and other notables.
“While our guests are with us, I expect them (from experience in Padua) to want to eat, drink and be merry with us (especially with NMG),” one of the coordinators wrote, referring to Justice Gorsuch.
Amanda Frost, a law professor at the University of Virginia who specializes in legal ethics, said she found such arrangements troubling. “Some of this sounds like all-expenses-paid vacations, with a little teaching thrown in,” she said in an interview.
For Scalia Law, the next piece of the puzzle would be the next Trump appointee, Justice Kavanaugh.
He had taught at Harvard Law School for a decade while sitting on the appellate court in Washington. But that relationship ended amid a campus storm over allegations during his confirmation that he had engaged in sexual misconduct years before. The judge angrily denied the allegations and lamented, “I may never be able to teach again.”
Within weeks of his confirmation, Scalia Law came calling. The new justice already had ties to the school. He had spoken there at least twice and was friendly with faculty members and ideologically aligned; he once cited three Scalia Law professors in a single decision.
Mr. Jaffer and another professor scheduled a visit with him at the court, followed by Mr. Butler, who then emailed the justice on Jan. 15, 2019, setting out the details of a proposed multiyear contract.
“Exact terms as the Gorsuch contract,” the dean wrote. “The contract will need to make its way through university administrative labyrinth. But things are preapproved. We do not plan to make an announcement of your appointment at this time.” (After word got out in March and protests ensued, the dean assured his new colleague that “all the ruckus” had come from the university’s main campus, not the law school.)
Like Justice Gorsuch, scheduled to teach in Padua again that summer, Justice Kavanaugh would teach his two-week class abroad — at a university in Surrey, southwest of London, with accommodations for his family nearby in Runnymede, on the River Thames, where Magna Carta was signed. “We will find a nice cottage for them,” Mr. Butler wrote.
Now three of the nine justices were ensconced at Scalia Law. “Conservatives always had a network,” one donor to the school said in an interview. “Now they had a lounge.”
Leverage
After a flurry of events in the fall of 2018 marking the second anniversary of Scalia Law, Mr. Butler sent an email blast to the school’s friends and colleagues with the subject line “Five Supreme Court Justices Came to Scalia Law School Last Week … Here’s Why.”
The school had spent months pushing for the justices’ presence. A highlight was a dinner, with several justices, that collected $1.4 million. “Last week, Scalia Law made history,” wrote the dean, whose message included four photos of the justices.
Scalia Law was walking a fine line: marketing its closeness to the justices amid the court’s demands for opacity. In the emails obtained by The Times, court officials repeatedly pushed for media blackouts and tightly controlled announcements about events. “Photos may not be used on social media or for any endorsement, promotional or fund-raising purposes,” a court employee wrote before an event featuring a justice.
Despite the prohibition against enlisting court staff members to help with paid outside work, records show that much of the labor of keeping up with the justices’ teaching and other activities at Scalia Law fell to their chambers’ administrative staff — organizing class materials and student papers, managing student visits and coordinating guest lectures.
Justice Gorsuch’s staff used the justice’s login to create an online “forum/discussion” space for students and post readings, and submitted his grades to the school. The staff of Justice Thomas requested his class roster and collected his syllabus, helping to track down missing reading materials. Justice Kavanaugh’s chambers inquired about when he would get his paychecks, and whether he would get a raise.
At the law school, Mr. Butler sought to convert his closeness with the justices — he was on a texting basis with Justices Kavanaugh and Thomas — into bragging rights with donors. He also began calling in favors. The emails show Scalia Law beseeching the justices to attend a host of law school activities, as guests or speakers. Students were given tours of the court, escorted by justices. “I know the students were THRILLED to have the opportunity to get a behind-the-scenes look at the Court,” Jennifer Mascott, a Scalia Law professor who had clerked for Justice Thomas, wrote to her former boss.
And in July 2019, Mr. Butler emailed Justice Gorsuch on behalf of the Property and Environment Research Center, a Montana-based property rights group that describes itself as “the home of free-market environmentalism.” Mr. Butler sat on the group’s board at the time, and Justice Gorsuch, who is seen as generally sympathetic to landowner rights, was a natural ally.
“I believe you will love a visit to PERC and the Yellowstone Club in Big Sky — with its legendary skiing,” Mr. Butler wrote, attaching an invitation from the group’s chairman, Loren Bough. “Or, if you prefer to come in the summer, Loren will treat you to visit to his family’s ranch which is renowned for having some of the best trout fishing in Montana.”
The invitation was extended the month after the Supreme Court agreed to hear a property rights case of interest to groups like PERC. It involved a dispute between a group of Montana landowners and the Atlantic Richfield Company, owners of a Montana superfund site. On Oct. 22, PERC co-filed a brief asking the court to rule in favor of the landowners.
In a statement, PERC said that it had never received a response from Justice Gorsuch and that “there was no connection” between the invitation and the brief it filed “months later.”
But the law school records show that Mr. Butler continued to push, sending two follow-up emails, and, in early October, asking his staff to set up a meeting with the justice to discuss the invitation.
The court ultimately ruled for the company, with Justices Gorsuch and Thomas in dissent.
Law schools and professors also frequently ask the court to take positions on specific cases, by filing amicus briefs. Such “friend of the court” briefs are an approved means by which outside parties can seek to influence the justices. They are often read by clerks, who forward only those making the most salient arguments, though a brief from someone connected to a justice can have an advantage.
Scalia Law professors are not simply regular filers; a quarter of the school’s briefs submitted to the court since the justices joined the faculty have been written by professors who served as the justices’ co-teachers, some while classes were ongoing.
Helen Alvaré, an associate dean, taught with Justice Kavanaugh in Britain in 2019, and again at the Nemacolin resort in Pennsylvania in 2020. In between, she filed a brief supporting the Trump administration’s expansion of exemptions to the Obamacare contraception mandate.
Ms. Mascott filed briefs in two cases in March 2022, while teaching with Justice Thomas, and a third brief that May as she prepared for an on-campus summer program with Justice Kavanaugh.
Justice Thomas appeared to echo her legal reasoning in his dissenting opinion in a case involving state sovereign immunity. Her brief in another case, involving the Department of Veterans Affairs, so caught Justice Gorsuch’s attention that he name-checked her during oral arguments.
“And what do we do with Professor Mascott’s amicus brief?” he asked the government’s lawyer.
Ms. Frost, the legal ethics professor, said that filing briefs in cases before the court while teaching with a justice could create “the appearance of impropriety,” even if the cases were never discussed. “It’s the proximity in time that’s concerning,” she said.
Mr. Randall, the current dean, said the briefs were often signed by many lawyers, some of them known to the justices. “I doubt that familiarity is limited to law professors,” he added.
A Place at the Table
This summer, Justice Gorsuch will teach in Portugal. Justices Kavanaugh and Thomas have no confirmed plans to teach, though the school says it would welcome them.
Together with the name change, the court’s connection to the school has been felt in the money flowing from conservative donor networks.
In fiscal year 2019, Mr. Butler reported a record fund-raising haul of more than $60 million; of that, $50 million came in a bequest from the Rouse family, major conservative donors. Fund-raising has remained strong — $22.5 million in 2021.
Mr. Gray, the veteran of the Bush administrations, has given $3 million and had his name affixed to the school’s Center for the Study of the Administrative State. In 2021, the Gray center joined with the Heritage Foundation to sponsor a celebration of Justice Thomas’s 30th anniversary on the high court — confirmation of Scalia Law’s elevated place in the conservative legal universe.
Further confirmation, beyond the rising rankings and more highly credentialed students, comes from the growing number of graduates winning coveted Supreme Court and circuit court clerkships — a powerful engine of career advancement and networking in the legal world, and an added burnishing of Scalia Law’s reputation.
In 2016, the year of the name change, only one graduate received a circuit court clerkship. And the school had not had a Supreme Court clerk since Mr. Consovoy, who worked for Justice Thomas during the 2008-9 term. (Mr. Consovoy died this year.)
But as the Trump administration, guided by Mr. Leo of the Federalist Society, began to remake the federal judiciary, Scalia Law made it a priority to establish clerkship pipelines. As one professor wrote, “We are hoping to place Scalia Law Alumni who are current members of our Fed Soc student chapter, alumni who were active in Fed Soc, and other Scalia Law conservative and libertarian alums in federal clerkships.”
Since the rebranding, the numbers have steadily risen. In 2021, Scalia Law placed 10 alumni in circuit court clerkships. (More were hired for the district courts; the school celebrated that overall success with a news release headlined “Lucky 21 in 2021!”) Last year, eight graduates secured federal circuit court clerkships, and, for the first time, two were hired by Supreme Court justices.
“While schools like Harvard and Yale still have the best placement in elite jobs and federal clerkships, George Mason has been punching above its weight,” said Derek Muller, a professor at the University of Iowa College of Law who studies legal education and employment outcomes.
All but a handful of Scalia Law’s recent elite clerkships were with judges appointed by Republican presidents. Indeed, clerkships have become a battleground in the ideological warfare over legal scholarship. Two prominent circuit court judges have recently vowed to push back at “cancel culture” by rejecting clerkship applicants from Yale and Stanford.
Mr. Butler once said, “We’re not going to apologize for using our connections” to help students win clerkships. And last year, Ms. Alvaré wrote to Justice Alito to lobby for an applicant. At the time, Ms. Alvaré was busy, in articles, legal briefs and interviews, trying to sway public sentiment on a pending case that would represent the fruition of the conservative legal movement’s animating promise: the end of the constitutional right to abortion.
The student got the clerkship. And in May, Justice Alito made his first public appearance after the leak of his draft opinion — via closed-circuit TV, because of security concerns — at the Antonin Scalia Law School.
Julie Tate contributed research."
Saturday, April 29, 2023
Truth Social whistleblower Will Wilkerson is working at Starbucks - The Washington Post
He blew the whistle on Trump’s Truth Social. Now he works at Starbucks.
The former high-ranking executive of Trump’s media company says he’s shared 150,000 internal documents with federal investigators. Many of his new strip-mall coworkers have no idea who he is.
SOMEWHERE IN NORTH CAROLINA — About six months ago, Will Wilkerson was the executive vice president of operations for former president Donald Trump’s media business, a co-founder of Trump’s Truth Social website and a holder of stock options that might have one day made him a millionaire.
Today, he is a certified barista trainer at a Starbucks inside a Harris Teeter grocery store, where he works 5:30 a.m. shifts in a green apron and slip-resistant shoes, making Frappuccinos for $16 an hour.
“It’s an honest day’s work,” he says, sitting near the flower kiosk of the supermarket in a North Carolina suburb, which he asked not be named due to fears of harassment. “I love what I do.”
Wilkerson, 38, has become one of the biggest threats to the Trump company’s future: a federally protected whistleblower whose attorneys say has provided 150,000 emails, contracts and other internal documents to the Securities and Exchange Commission and investigators in Florida and New York.
Wilkerson last year publicly accused Trump Media and Technology Group of violating securities laws, telling The Washington Post he could not stay silent while the company’s executives gave what he viewed as misleading information toinvestors, many of whom are small-time shareholders loyal to the Trump brand.
The company fired him shortly after, saying he had “concocted psychodramas” but not responding to the specifics of his claims. This month, the company’s chief executive, the former Republican congressman Devin Nunes, sued Wilkerson for defamation in a Florida circuit court, claiming he had been subjected to “anxiety,” “insecurity,” “mental anguish” and “emotional distress” as a result of Wilkerson’s comments.
Wilkerson’s whistleblowing case has gained little of the attention the other legal challenges facing the Republicans’ presumptive presidential nominee have gotten, including the criminal charges Trump faces related to hush money payments to the adult-film actress Stormy Daniels.
But his testimony and trove of records have challenged the main engine of Trump’s post-presidential business ambitions, a venture that once commanded multibillion-dollar valuations with lofty promises to overtake the titans of American tech.
The company’s attempt to merge with a financial outfit known as a special purpose acquisition company, or SPAC, has been frozen for months due to a pending SEC investigation that predates Wilkerson’s public comments and has blocked the company’s ability to unlock a critical source of cash.
The SPAC, Digital World Acquisition, said in an SEC filing last month that it had replaced its chairman and chief executive, Patrick Orlando, and was facing “unprecedented headwinds.”
Orlando’s termination came one week after The Guardian cited Wilkerson’s testimony in a report alleging that federal investigators were examining whether $8 million in investments had violated money-laundering rules. Orlando did not respond to requests for comment.
The Post provided a detailed summary of this story to Trump Media and Digital World, seeking comment. Trump Media spokeswoman Shannon Devine said in a statement, “This report lazily regurgitates already discredited hit pieces, defamatory allegations, and false statistics about Truth Social’s record levels of traffic,” without addressing any specific claims. Digital World’s interim chief Eric Swider said The Post’s reporting contained “several material inaccuracies” but declined to say what they were.
On Truth Social, the social network where Wilkerson posted Trump’s first “truth” last year, he is regarded as a Judas-like traitor and pasted into memes showing his head on the body of a snake.
Will Wilkerson posted the first post, or "truth," on former president Donald Trump's Truth Social profile in February 2021. (Video: Will Wilkerson)
But at Starbucks, he said in an interview, almost no one seemed to know anything about the whole ordeal. He explained his situation to one person, his direct supervisor, who he said is a “very sweet lady, but she doesn’t really understand the legal system in the United States, you know, and what that means.”
One recent morning, the woman told a Post reporter that Wilkerson is “nice” and “calm” and pointed to a printout that suggested the cafe’s customer-service ratings had gone up since he’d begun.
“Obviously, I don’t shout from the rooftops here about my past history and my whistleblower status,” Wilkerson said. Many of his co-workers are still in high school.
Sometimes, though, he can’t prevent the two parts of his lives from intersecting. When he recently had to ask for a week off, Wilkerson told his store manager he needed the time because he was a witness in a federal investigation. (“Sounds serious,” the man replied, as Wilkerson recalled, before penciling him in.)
If the SEC takes action against Trump’s company and eventually collects sanctions, Wilkerson could be eligible to make millions of dollars through the agency’s whistleblower reward program, depending on the amount of assessed penalties. But such payouts are far from guaranteed, and it’s unclear whether it’ll make up for the money he lost by speaking out. Wilkerson’s lawyers, Phil Brewster, Patrick Mincey and Stephen Bell, argue that his firing was corporate retaliation, which is prohibited by U.S. law.
The early hype of Trump Media had made it into a financial blockbuster. An initial public offering raised $300 million for Digital World, while a group of private investors pledged another $1 billion. Investors had sent the stock price of the SPAC soaring to a high of $175 on the strength of its proposed merger with Trump Media. In September, shortly before Wilkerson’s firing, Forbes magazine had estimated that Trump’s stake in Trump Media was his “single most valuable asset,” worth roughly $730 million.
In the months since, the venture’s value has nosedived. Each Digital World share is now worth about $13. In a financial disclosure filing this month, as required by his new presidential candidacy, Trump said Trump Media was worth between $5 million and $25 million and that his income from it had been less than $200.
Still, the former president and his allies have declared Truth Social a resounding success. Nunes, the former Republican congressman who now is Truth Social’s CEO, said in an interview this month that the site is “blowing up the status quo,” and Trump said in a “truth” this month that it has allowed him to “get the word out like never before. As soon as I ‘speak’ on Truth, the WORD immediately spreads everywhere. MAGA!”
But the company, which had told investors it would reach 50 million users by 2024, appears to be only a fraction of the way there, according to the site’s own publicly visible follower data. Truth Social’s global traffic last month fell to roughly 7 million visits, 40 percent below its August peak, according to estimates from the online analytics firm Similarweb. For comparison, the video site Rumble had 169 million visits in March, and Twitter had more than 6.6 billion.
Though Trump posts to the site at all hours, his Truth Social audience has grown only slightly in the last six months, from 4 to 5 million — a tiny fraction of the 87 million who followed him on Twitter before he was banned after the U.S. Capitol riot on Jan. 6, 2021.
Trump’s Twitter account was reinstated in November after Elon Musk’s takeover, raising anxieties among Truth Social investors that he would race back to tweeting as the 2024 presidential campaign heats up. So far, however, Trump has remained true to Truth Social, despite it being only the 2,479th most popular website in the United States, according to Similarweb — viewed less often than the animal-news blog The Dodo, an AARP games webpage and, as Jimmy Kimmel noted on his late-night show, a website for photos of celebrities’ feet.
Wilkerson grew up in Los Angeles, where his grandfather, Billy Wilkerson, had been a controversial legend: The founder of the Hollywood Reporter, and owner of some of the Sunset Strip’s most famous nightclubs, he had been a chief instigator of the anti-Communist Hollywood blacklist of the 1950s that came to define America’s red scare.
Will Wilkerson got into the L.A. music scene and, after high school, promoted nu-metal bands like System of a Down, helping send around stickers and swag. The work led him to odd jobs at radio stations along the Pacific Coast and, ultimately, to a producer role at the syndication company Premiere Networks, where he met Andy Litinsky and Wes Moss, two former contestants on “The Apprentice,” the competition-reality show where Trump was host.
The three men, Wilkerson said, had kept in touch over the years, trading business ideas. When they met one weekend in Atlanta to hammer out a proposal for a portable milk-frothing device they’d called the Super Shaker Latte Maker, Litinsky said he had a better idea: Using the then-novel financial maneuver of a SPAC to fund a media company that could capitalize on Trump’s post-presidential fandom and fame.
Wilkerson helped draft the company’s first plan for “Trump’s New Media Empire,” and he was part of the team that pitched Trump over cheeseburgers at Mar-a-Lago, his opulent Palm Beach estate, three weeks after the insurrection. They promised Trump an online platform where he would never be silenced, canceled or fact-checked. What’s more, Wilkerson said, they offered him 90 percent of the company without him having to invest a single cent. (Trump’s recent disclosure filing confirmed he still owns 90 percent.)
Inside the company, Wilkerson said he became a “Swiss Army knife,” tackling the start-up’s many financial and technical demands as it sealed a partnership with Digital World, patched together a social network and navigated Trump’s unpredictable temper.
“One day, you know, he would be in a very, very happy mood,” Wilkerson said. “The next day he would read something in the paper and just yell, just be livid. That’s who we were dealing with.”
By last summer, Wilkerson’s own feelings on the company had soured, and he’d begun to worry that the same small-time investors the founders had counted on were now at serious risk. He alerted the SEC to his concerns via a whistleblower tip form in August, then spoke with The Post and the Miami Herald for stories published in October. Trump Media fired Wilkerson shortly after learning he’d spoken with a Post journalist, saying he’d made “unauthorized disclosures” to The Post.
Over the next few months, Wilkerson said he sent out hundreds of job applications, hoping to find something in tech or radio but never getting past the first few calls. He suspects the drama around his whistleblowing — and the company’s attacks on his integrity — might have persuaded employers to stay away.
In December, running out of money and options, he applied at Starbucks and got a call back the next day. Though he’d listed his Trump Media executive role on his resume, he suspects it was his past barista experience, at a Whole Foods coffee-juice bar in L.A. in his 20s, that got him the job.
Trump Media, meanwhile, has faced its own struggles. Digital World said in an SEC filing Wednesday that it is cooperating with investigations by the SEC and the Department of Justice as well as an inquiry from the Financial Industry Regulatory Authority related to events from before the SPAC declared its intention to merge with Trump Media in 2021. Finra declined to comment.
With its Trump Media deal frozen by the pending investigation, Digital World blew through its initial one-year merger deadline, leading the SPAC to try and failseveral times to schedule shareholder votes to extend the deadline. Without those votes, the SPAC has forced to borrow millions of dollars from its sponsor, ARC Global Investments II, to keep the deal afloat, SEC filings show.
Trump Media has also begun pushing for help from Washington. In February, the company’s general counsel, Scott Glabe, a former Homeland Security official in the Trump administration, wrote a letter urging top Republicans in Congress to investigate the SEC for its “egregious conduct and blatant politicization” in delaying the company’s merger, saying the “endless investigation … clearly constitutes an unprecedented attempt to kill the deal without any finding of wrongdoing.”
After the Guardian’s report that federal prosecutors in New York were examining $8 million in Trump Media investments, CEO Nunes sued Wilkerson, the Guardian and a Florida journalist who had covered the story, saying Wilkerson’s goal had been “defaming Nunes” and that the report made Nunes “appear odious, ridiculous and contemptible.”
Nunes’ lawsuit argues that the journalists had published “statements that were a product of their imagination” and that “the entire story is fabricated.” Wilkerson contends that he has documents supporting key claims in the report, including the allegation that the $8 million had come from a family trust with no public profile and a bank in the Caribbean island of Dominica.
Wilkerson said his fellow executives inside the company had been uneasy about the loans because Orlando, who had helped facilitate the transfer, had declined to offer any detailed information about its origins.
In a video Will Wilkerson sent to the SEC, Digital World and Trump Media executives toast an investment deal on Oct. 26, 2021. (Video: Will Wilkerson)
In one March 2022 email, which Wilkerson has shared with investigators and The Post, Trump Media’s chief financial officer, Phillip Juhan, said that the company had no contact information for anyone at the family trust more than a month after the money had been transferred. The Trump Media spokeswoman was asked about this email but did not address it in her statement, and Juhan did not respond to a request for comment.
A few days after the report, Digital World announced in an SEC filing that its board of directors had “terminated” Orlando as its chairman and CEO and installed a new management team to help “restore confidence” to its roughly 400,000 shareholders across 30 countries.
Digital World, which lists the address of its executive offices as a UPS store in Miami’s Coconut Grove neighborhood, said in a filing this month that it is now paying for office space in Humacao, Puerto Rico, owned by the consulting firm managed by Swider, the SPAC’s interim chief. An address listed in the letter corresponds to a gated community inside the sprawling coastal resort of Palmas del Mar. The cost, $15,000 a month, also covers “secretarial and administrative support,” Digital World told the SEC.
In its filing this week, Digital World said it had accrued more than $17 million in debts by the end of last year, up from $480,000 at the end of 2021, and that its cash on hand had dropped from more than $327,000 to about $989.
The SPAC also said it needed to complete the merger or seek further extensions by June 8 or its “existence will terminate,” in which case it would be required to return the money to shareholders. In a filing, the company said it “cannot assure shareholders that there will be sufficient funds” for the purpose of paying for its own liquidation costs or outstanding bills, and that the money in its trust account could “become subject to the claims of our creditors which would have higher priority than the claims of our public stockholders.”
Digital World’s unpaid debts could end up rolling onto the small-time, Trump-loving investors if the deal falls apart, said Michael Ohlrogge, a law professor at New York University who researches SPACs.
“The vast majority of SPACs just don’t rack up these kinds of expenses … and the shareholders could be in some danger of getting pursued by the unpaid vendors,” he said. “It could be an interesting and somewhat fitting end for Trump’s SPAC: that it ends in failure and liquidation and sticks its shareholders — presumably many or most of whom are his political supporters — with the bill.”
Wilkerson said he still looks at Truth Social sometimes, where he has a special “verified” account with 38,000 followers, and feels a pang of sadness about the way things turned out. He said he has sent messages to Litinsky and Moss, who he still regards as friends, but has yet to get a response. The men did not respond to separate requests for comment from The Post.
Wilkerson says he enjoys Starbucks: He gets to talk to nice people, likes his co-workers and doesn’t have to worry about Trump screaming at him through the phone. “I’m proud of what I do, no matter what it is,” he said. “Nothing’s beneath me.”
After a Post journalist took photos of Wilkerson at work last week, though, some of his co-workers began Googling his name and coming up to congratulate him and cheer him on. “Now most of the store knows my story,” he said.
Wilkerson expects detractors will say that he’s gotten what he deserved. On Truth Social, the user “Gi_Bill1962,” who says he is a Trump supporter and Digital World shareholder, posted a recent “truth” saying, “The backstabbing @Will Wilkerson thought he was gonna have his 15 minutes of fame!” alongside three crying-laughing emoji.
But Wilkerson said he doesn’t regret trying to protect shareholders by sharing information that, had he said nothing, “would have probably never seen the light of day.”
“I made the conscious decision. I knew the risks … especially in regards to retaliation. But I don’t think I could have sat back and stayed quiet, even if I was compensated handsomely for doing so,” he said. “I’m here and I’m not going away. … Ultimately, you know, I just want to do what’s right.”