Southern Methodist University’s (SMU) “First Amendment Clinic” declined to take on a case against Dallas County for local personality Alex Stein, claiming that the clinic is already “operating at capacity.”
Stein filed a lawsuit against Dallas County and commissioners court members for allegedly violating his free speech rights by having him removed from a regular meeting in May of this year. While Stein has retained private counsel in his lawsuit, he also reached out to SMU’s First Amendment Clinic about pro bono representation.
On the First Amendment Clinic’s website, the organization claims to focus on “issues including free speech, freedom of the press, and freedom of assembly and petition.” Stein’s grievances against the commissioners court fall squarely within the scope of the clinic’s declared focus.
Furthermore, the clinic’s director, Thomas Leatherbury, a senior partner at Vinson & Elkins LLP, is well-known for staking out hardline positions on free speech and other First Amendment issues in the press – but only for far-left causes, particularly when the government infringes upon the speech of citizens.
Leatherbury recently went so far as to say that Governor Greg Abbott is “the governor of censorship and double standards.”
On Vinson & Elkins’ website, Leatherbury is quoted as saying, “I love the constitutional issues I work on, especially in First Amendment cases.”
With such zeal for defending issues of free speech, the rejection of representation in what appears to be a surefire win for the clinic — as well as Leatherbury — creates more questions than it answers.
In the correspondence provided by Stein and reviewed by The Dallas Express, law fellow and representative for the First Amendment Clinic, Peter Steffensen, did offer to “potentially” file an amicus brief on Stein’s behalf at a later date.
“Our elected officials are supposed to have a thick skin and stand up to criticism and basic questioning, and we might be interested in saying something to that effect if you and your counsel believe that would be useful,” remarked Steffensen in the same email officially declining representation to Stein.
Steffensen’s comments strike at the core of the rule used by Commissioner John Wiley Price to have the marshal forcibly remove Stein from the meeting.
That rule states, “Any person making personal, impertinent, profane or slanderous remarks or who becomes boisterous while addressing and/or attending the commissioners court meeting shall be removed from the commissioners’ courtroom if security is so directed by the presiding officer.”
While Steffensen — and by extension, the First Amendment Clinic he represents — were tepid in their reaction to Stein’s removal under this rule, First Amendment attorney and constitution expert Tony McDonald was far more direct when asked to comment.
“The commissioners court’s rules violate the First Amendment by singling out particular types of speech, in particular speech critical of government officials. While governmental bodies are certainly empowered to maintain order during meetings, they cannot do so by suppressing types of speech when that speech is not actually disruptive to the meeting,” pronounced McDonald.
Even members of the commissioners court believe that Stein was treated unfairly.
In a recently released video, Dallas County Commissioner J.J. Koch stated clearly that the Dallas County Commissioners Court “violated [Stein’s] First Amendment rights.” Koch lamented that the commissioners court would likely “face repercussions” for overtly violating Stein’s free speech rights.
In response to Steffensen’s email, Stein told The Dallas Express that their declining to represent him was “hypocrisy,” saying, “it’s obvious [they] don’t represent people that don’t have the same political ideology” as the clinic and its leadership.
Stein clearly illustrated a concern for the fairness of the First Amendment Clinic in its case selection. As mentioned previously, Thomas Leatherbury, the clinic’s director, has been openly critical of the priorities of state Republican leadership in recent times. For example, he decried the movement to identify and remove so-called “explicit” or “pornographic” books from public schools, as well as the Legislature’s effort to end “viewpoint discrimination” by social media companies accused of suppressing the speech of conservatives on their platforms.
County Judge Jenkins and Commissioner Price are both members of the Texas Democratic Party.
Questions surrounding the exact work of the First Amendment Clinic and on whose behalf they work have been unanswerable due to a puzzling lack of transparency.
The Dallas Express recently attempted to ascertain what cases SMU’s First Amendment Clinic was involved in and the relationship between the clinic and the law firm of its director, Vinson & Elkins LLP.
Inquiries for this information to both SMU and Vinson & Elkins leadership have thus far been ignored.
Further, SMU rejected a public information request for this information. The university claimed that “SMU is a Texas nonprofit corporation, a private and independent institution of higher education. It is not a ‘government body,’ as that term is defined in Section 552.003(1) of the Texas Open Records Act, nor is it ‘supported in whole or in part by public funds’ as described by the Texas Open Records Act, Section 552.003(5).”
While SMU does not receive an appropriation from the State of Texas, public tax dollars do support the “Tuition Equalization Grant Program” or TEG, which, according to the Texas Higher Education Coordinating Board’s website, “[p]rovides grant aid to students with financial need who are attending nonprofit private colleges and universities in Texas.”
While the university’s statement clearly asserts that it is not “supported in whole or in part by public funds,” SMU students may receive between $3,497 and $5,246 per year in taxpayer-subsidized tuition assistance through the TEG program.
The Dallas Express asked Stein to comment on the clinic officially declining to represent him while offering to “potentially” file a brief in support of his case at a later date. Stein countered, “I think they know as well as I do that it’s an empty offer.”
The Dallas Express will continue to follow Stein’s case and the actions of SMU’s “First Amendment Clinic.”
SMU may not be a gov’t body for all purposes, but it may well be one for some purposes. When gov’t funds a program, that program often has to be open to examination. Did SMU seek an AG opinion on it, or just decide what the answer is?
Because Alex’s answer may be “Petition for Writ of Mandamus”.