Friday, December 08, 2023

Public Statement of Israel Research Universities Presidents Regarding American Universities Presidents’ Statements in Congressional Hearings

Since the horrifying atrocity of October 7th, there has been a distressing surge in anti Semitism and anti-Israel sentiment on numerous campuses across the United States, including some of its most esteemed universities. Instead of offering empathy and support to Israeli and Jewish students in the wake of the brutal massacre of Jewish communities in their homeland, campuses have witnessed protests advocating for the annihilation of the State of Israel ("from the river to the sea") and endorsing terrorist activities against Israeli citizens ("intifada"). There has been a disturbing display of hatred towards Jews and Israelis, causing fear among this community on American campuses. This resurgence of hostility evokes memories of dark chapters in Jewish history. 

Under these distressing circumstances, there is an urgent need for firm leadership on American campuses—leadership that unequivocally declares, "This far, no further." Regrettably, such resolute leadership appears to be lacking at present. While some individual academic leaders have vocally opposed anti-Semitism and actively worked against it, many others have remained silent. 

In a disconcerting recent hearing held in the U.S. Congress, presidents from three prominent universities (Harvard, MIT, and Pennsylvania) were questioned about their stance on severe instances of anti-Semitism on their campuses. Although these leaders acknowledged the existence of anti-Semitic expressions, they maintained that curbing a significant portion of these expressions is challenging due to their protection under the banner of free speech. 

During a critical moment in the congressional hearing, the university presidents were asked whether a call for the genocide of the Jewish people aligns with their institutions' codes of conduct. Astonishingly, they struggled to provide a straightforward "no" and instead offered vague responses, suggesting that the response depends on the context. This hesitation raises concerning questions about the interpretation of free speech. 

Following the hearing, the president of Harvard University released a brief statement emphasizing the institution's prohibition of anti-Semitic expressions, a sentiment echoed by the president of the University of Pennsylvania. 

The positions taken by the university presidents during the congressional hearing, suggesting that anti-Semitic expressions and calls for genocide may fall under the umbrella of free speech, defy the principles of the U.S. Constitution. A nation that permits a call for genocide in the guise of freedom of speech does a disservice to its values. Freedom of speech, while a fundamental right, must yield in the face of incitement, hatred, and calls for violence, especially a call for genocide. This principle holds true not only in the United States but also in all democratic countries globally.

The university presidents' failure to provide a firm stance in dealing with instances of anti-Semitism and anti-Israel sentiment on many campuses in the United States is alarming. Apologies and expressions of regret are not enough; what is required are clear and decisive actions. In their testimony before Congress, the university presidents mentioned measures taken or planned to protect the security and well-being of J

ews and Israelis on campuses. 

It is now their responsibility to ensure the effectiveness and sufficiency of these measures. The burden lies on their shoulders to demonstrate that the universities they lead not only excel in academics but also uphold universal humanistic values and defend the rights of minorities. It is imperative that everyone understands that advocating for the destruction of a people is strictly prohibited at Harvard, MIT, Pennsylvania, and everywhere else in the world. 

Prof. Arie Zaban, President of Bar-Ilan University; Chairperson of Association of University Heads, Israel – VERA 

Prof. Daniel Chamovitz, President of Ben-Gurion University of the Negev Prof. Alon Chen, President of the Weizmann Institute of Science 

Prof. Asher Cohen, President of the Hebrew University of Jerusalem Prof. Leo Corry, President of the Open University 

Prof. Ehud Grossman, President of Ariel University 

Prof. Ariel Porat, President of Tel-Aviv University 

Prof. Ron Robin, President of the University of Haifa 

Prof. Uri Sivan, President of the Technion-Israel Institute of Technolog

Posted by Orly Lobel on December 8, 2023 at 04:17 PM | Permalink | Comments (0)

A mess of stuff on campus speech

A mess of items today that reflect different pieces of what I have been trying to put together this week.

1) Popehat began his Camp One defense by attacking the premise of the committee hearing:

A more realistic interpretation is that the hearing was a crass show trial primarily intended to convey that a wide variety of dissenting speech about Israel is inherently antisemitic, that American colleges are shitholes of evil liberalism, and that Democrats suck. Since Democrats do suck, they mostly cooperated. [citing statements by Pennsylvania Governor and potential 2028 presidential candidate Josh Shapiro].

As if to prove White's point, Doug Emhoff at the National Menorah Lighting took aim: "Seeing the presidents of some of our most elite universities literally unable to denounce calling for the genocide of Jews as antisemitic — that lack of moral clarity is simply unacceptable." Except Magill, Gay, and Kornbluth did not fail to denounce calls for genocide as antisemitic. No one asked whether calls for genocide or "river to sea" are antisemitic; Stefanik asked whether those statements constitute protected speech and they gave the correct answer of "it depends on context," because it does. In fact, they did at points condemn the message, just without expressing intent to sanction the speech where it remained protected.

2) David Bernstein said on Twitter (I cannot find the link) that the problem is not universities' failure to stop hate speech but their failure to enforce existing content-neutral campus regulations. The comments of the MIT student in the video Steve links to (and of other students who spoke outside the hearing) confirms that; universities can and should proscribe and sanction much of what she describes, although not because the speech is antisemitic. Had the hearing focused on those university failures, it would have played very differently. Of course that was never the point. Popehat again: "many people bought it, and now it’s being used as part of the culture war against higher education, and too many of you fucking fell for it."

3)Eugene Volokh emphasizes an often-overlooked value of speech: Know what people are thinking:

No-one likes rude awakenings, bitter lessons, and situations with which one is not quite sure how to cope. But they are tremendously useful. Many of us have indeed been rudely awakened to the magnitude of hostility in many American universities to Israel, Israelis, and Jews. But that's not because there has been a surge of such hostility: It's because the existing hostility has revealed itself.

Thanks to the freedom of speech, we have a better sense now than before of who our enemies are, and who our friends are. We have a better sense of how our institutions operate. We have a better sense of how the ideologies that many teach there can play out.

4) Glenn Reynolds attempts to, in my terms, move folks from Camp Three to Camp One:

But as much as I enjoy seeing these people stew in the juices of their hypocrisy – and believe me, enjoy it I do -- it is nonetheless true, as Eugene Volokh cogently points out, that free speech principles, and the First Amendment where it applies, prevent things like a selective ban on anti-semitism, or on “advocacy of genocide” or whatever.

He opposes proposals for new restrictions on campus and a new commitment to the old protections for campus speech. He argues campuses adopted those to protect lefties from the conservative establish; the reverse may have a salutary effect.

5) Rep. Stefanik published an op-ed in the Wall Street Journal (looking for an unpaywalled copy--will update if I find one) placing herself in Camp Three. Of course, that is not the position she pursued through her questions on Tuesday. Maybe she recognized the potential problem with Magill's suggested solution of expanding codes of conduct to reach more speech.

6) I will leave on this question: What will it take to move campers from Three to One? As I have said, I believe many of these campers agree that a lot of this speech (including a lot of the speech at the center of this week's controversy) is protected because it does not rise to incitement, threats, or harassment. But they: 1) Recognize that universities have not acted as if it were protected until Jews were the targets and 2) Expect universities to return to past practices when future speech targets different groups. Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students? Must that include some compensation or restitution to them? Does it require more formal prospective commitments? Must universities dismantle the DEI apparatus and presence of CRT programs (that is Reynolds' answer) and maybe all Sociology programs (another WSJ suggestion)? Something more? It would great to see this become the question, rather than unhelpful insistence--perpetuating universities past sins--that everything is incitement to violence.

Posted by Howard Wasserman on December 8, 2023 at 10:48 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Presidential Quo Warranto

Suppose we discovered tomorrow that President Biden is actually less than 35 years old. (I know, I know). How can an ineligible President be removed? Right now, there are two options: (1) impeachment and (2) the 25th Amendment. Both of these are hard to implement. Is there no other way?

During the 1876 presidential election fiasco, Congressman David Dudley Field proposed legislation to establish a federal quo warranto remedy that might have let courts remove an ineligible President. Field was Justice Stephen Field's brother and was responsible for the codification movement that swept many states during the 19th century. He explained that that his bill would allow the federal courts to provide a "remedy for a wrongful intrusion into the office of President or Vice-President." Field was focused on election fraud, though he mentioned that the presidential electors themselves could be ineligible. (There were accusations in 1876 that a few presidential electors were ineligible under Section 3.)

Field then explained that there was a precedent. He said "there now stands upon the statute-book authority for a quo warranto . . . a quo warranto to try the title to the presidency--in cases arising under the Fourteenth Amendment." He then quoted the language:

"Jurisdiction is given to the circuit courts of all suits to recover possession of any office except that of elector of President and Vice-President, or Representative or Delegate in Congress, or member of a State Legislature, where the sole question arises out of the denial of the right to vote on account of race, color, or previous condition of servitude."

Why did Field think that that this statute covered the presidency? Because it said "any office." (This is, of course, similar to what Section 3 of the Fourteenth Amendment says.)

What Field did not say is whether quo warranto could remove a President or only a President-elect. You can distinguish those positions, and Field did not discuss impeachment at all. It's an interesting hypothetical/exam question.


Posted by Gerard Magliocca on December 8, 2023 at 07:47 AM | Permalink | Comments (0)

Race or Rez?

In argument in Harrington v. Purdue Pharma (on the settlement of the opioid bankruptcy), there was much discussion of the "res" of the bankrupt estate. Justice Gorsuch and Barrett referred to it as a "rehz" (as opposed to "race"), a pronunciation I never heard before.

Posted by Howard Wasserman on December 8, 2023 at 06:47 AM in Howard Wasserman | Permalink | Comments (0)


Much has been written here about Rep. Stefanik's grilling of the three university presidents. Here is what one M.I.T. graduate student had to say:


Posted by Steve Lubet on December 8, 2023 at 05:20 AM | Permalink | Comments (0)

Thursday, December 07, 2023

Poor Gerald Ford

In the Section Three litigation, one argument for why the President and Vice-President are not officers of the United States is that only appointed federal officials are officers of the United States. If correct, it's a bright and clean dividing line, right?

But what about Gerald Ford? He was an appointed Vice-President and President. And what about Nelson Rockefeller, who was also an appointed Vice-President. Were they officers of the United States? If not, why not? (I can't find anyone who addressed this in the 1970s.)

It's fair enough to say that the Twenty-Fifth Amendment just creates an exception to the appointed/elected distinction for officers of the United States (if Ford and Rockefeller were such officers). But if the 25th Amendment could make such an exception to this purported rule, why not the 14th Amendment?

Posted by Gerard Magliocca on December 7, 2023 at 07:47 PM | Permalink | Comments (0)

Woody Guthrie on Hanukkah

Chag Sameach, beginning tonight at 4:19 CT.


Posted by Steve Lubet on December 7, 2023 at 05:19 PM | Permalink | Comments (0)

Many camps respond to the antisemitism hearing

From bouncing around the internet, it seems to me that reactions to the context matters remarks from the three university presidents fall into three camps:

Camp One: They were right, although they did not express the point well. This is the First Amendment community, me included. I recommend what Lee Kovarsky and Eugene Volokh wrote, basically arguing there is no "genocide exception" to the First Amendment. Maybe the presidents could have said it better, but the essential point--context matters--is correct and unavoidable under the First Amendment and these universities' voluntary commitments to free speech. Update: Two more in this camp: Popehat (no surprise--he offers some good examples of what falls on which side of the line) and David Lat (who makes a version of my argument that conservatives will be singing a different tune if Magill follows through on her suggestion to decouple Penn's code of conduct from the First Amendment and the university cracks down on Students for Life of America).

Camp Two: They were wrong; any mention of eliminating Israel is a call for genocide and any call for genocide is a threat or harassment to any individual Jewish person who hears it. This is the ADL, Hillel, and other Jewish organizations. This is many of the non-lawyers, especially alums of the three schools, who do not understand or care about free speech, at least where they dislike the speaker and like the target of the speech. This camp is going to be very upset when Jewish students who support the Hamas war are sanctioned for supporting genocide. (Update: Most importantly, Camp Two wants these presidents to resign in disgrace).

Camp Three: The sudden solicitude for hateful and offensive speech is problematic and insincere because they have not (and likely still would not) express similar solicitude for calls for genocide against Black people or Palestinians. This seems to be many conservative and/or Jewish lawyers and legal academics. It perhaps is Stefanik, had she gotten different answers at the hearing(although, again, bad-faith actor, so who knows?). I think many in this group share the free-speech commitments of Camp One, but doubt the presidents will continue to do so. They watched schools come after speech and speakers because groups other than Jews felt "unsafe" or "threatened;" they watched schools issue public statements and offer support over numerous major world events that affected students as citizens of the world but did not affect the university as university; they watched solicitude and lack of consequence for students who occupied public spaces (the sort of content-neutral regulations universities can enforce). Yet when Jewish students felt unsafe on campus or when Jewish students were affected by world events, they were silent--no (or mealy-mouthed) public statements, a sudden understanding that hateful speech is protected, and a sudden devotion the Chicago Principles. Camp Three also worries about where we go next--when the next big event triggers different speech targeting different groups, how will universities act?

For the moment, therefore, Camp Two and Camp Three align--the presidents' answers were unacceptable and morally bankrupt and all should resign in disgrace. The question is where Camp Three goes as we move away from the heat of this hearing. I believe many in Camp Three recognize that the presidents were right and context does matter. And they must know that going to Camp Two likely will be worse for Jewish students, conservative students, and other preferred speakers. A second question, as I think I have said before, is how to respond when university leaders do the right thing for the wrong reason. If universities should abide by Chicago Principles and allow constitutionally protected offensive speech, should Camp Three accept and work with the right result, even if they reached it for the wrong reasons. Some of this may be suspicion that the commitment will not last when Jews are not the target (see above). But if so, it seems to me Camp Three's response to the hearing should not match Camp Two. Instead, it should be "welcome to the party, pal, but we will be watching to ensure you adhere to these newfound commitments. And your failure to do so may provide a basis for Title VI liability."

Posted by Howard Wasserman on December 7, 2023 at 11:27 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Review of "Washington's Heir"

There is a thoughtful review of the book in the new issue of the Journal of Supreme Court History. I can't link to it because it's behind a paywall, but I'm sure there are some subscribers who read this blog.

Posted by Gerard Magliocca on December 7, 2023 at 08:46 AM | Permalink | Comments (0)

Wednesday, December 06, 2023

Penn abandons the First Amendment (Updated)

Lee Kovarsky and Eugene Volokh offer great defenses of the presidents' answers at Tuesday's hearing, reaching similar conclusions to me in more articulate terms.

Unfortunately, the bad-faith pressure provided too much. Penn President Liz Magill posted a video, apologizing for answering the "does this violate the code of conduct" question in constitutional terms and stating her views that calls for genocide are threatening. She announced plans to reconsider the university code of conduct, with particular reference to whether calls for genocide should be punished as harassment or intimidation. As she put it, "Penn's policies have been guided by the Constitution and the law," but those policies must be "clarified and evaluated" in light of the new rise in antisemitism on campus and across the country.

This is bad for several reasons. As Eugene argues, students must be free to debate important moral, political, legal, and historical questions of when political violence and large-scale loss of civilian life is justified--in Gaza, in Israel, in Germany or Japan during World War II. Those debates are impossible if the university deems such discussions to threaten those who are part of or affiliated with the group suffering in war.

Supposed supporters of Jewish students and Israel may come to regret changes to the policies. Many regard Israel's war on Hamas as a genocide; Jewish supporters of Israel's war effort therefore violate the revised code that regards promoting genocide in the abstract as "threatening" some undefined and unknown Palestinian students. (An emailer described to me an incident at a private university in which a student was reprimanded for saying those defending Hamas are defending baby-killers and thus offending those students--not too far afield. Refusing to have the Constitution and law guide university policies can only lead to more such incidents). Supporters of Israel and Jewish students complain that universities have failed to protect Jewish students from offensive speech in the past two months when they have bent over backwards to protect every other groups from offensive speech. This is a fair criticism. But the answer cannot be to give universities an actual weapon--more-restrictive/less-speech-protective conduct codes-- that universities might use against Jewish speakers.

Finally, of course, the change will not appease bad-faith actors. When Penn applies its new, less-protective policies to sanction a Jewish student who "harassed" a Palestinian student by supporting "genocide" in Gaza, Elise Stefanik and Virginia Foxx will demand that Magill explain why her university has abandoned the freedom of speech.

Update: Claudine Gay (Harvard) issued the following statement:

There are some who have confused a right to free expression with the idea that Harvard will condone calls for violence against Jewish students. Let me be clear: Calls for violence or genocide against the Jewish community, or any religious or ethnic group are vile, they have no place at Harvard, and those who threaten our Jewish students will be held to account.

The first sentence works and would have been helpful at the hearing. I think the devil is in the last clause of the second sentence--does "threaten our Jewish students" mean in the First Amendment sense or in the colloquial sense?

Posted by Howard Wasserman on December 6, 2023 at 09:33 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

“The Undersigned Hereby Agrees to Act Sensibly“

Howard should find this story interesting. It’s about measures taken for a talk at Yale by a Palestinian journalist. Here’s the good stuff:

Each attendee was asked to sign a form acknowledging Yale’s Free Expression Policy and agreeing not to record the talk. Chatelle told the audience at the beginning of the event that the form was a “new precaution” put in place in light of recent violence against Palestinian students, citing the recent shooting of three Palestinian college students in Vermont

Yale’s Free Expression Policy stipulates, per the form, that students’ right to protest or express disagreement with a speaker is subject to three conditions. First, access to an event or facility may not be blocked; second, the event and the regular or essential operations of the university must not be disrupted and third, the safety of those attending the event and other members of the community may not be compromised.

“Should anyone choose to disrupt the event, you will be given the opportunity to stop, and if you do not, per Yale’s policy: ‘you will be subject to possible disciplinary sanctions, citation, and summons,’” the form read. 

Chatelle told the News that she and other event organizers were concerned that participants’ safety could be compromised if the talk was recorded and shared online. The organizers were also concerned that people would try to interrupt the event. 

“I think Ameera had a lot of very important things to say,” Chatelle said. “I didn’t want it to get disrupted by people who disagreed with the contents of the talk.”

I’m not sure what the form adds other than the obligation not to record. As the story notes, everything else is already university policy. The only relevant question is whether such a policy will be applied and enforced, hopefully consistently. If not, I suppose one could sign the form and then act as one liked, no-platforming at will and taking the easy bet that little by way of disciplinary consequences would occur. I’m guessing that the form was less meaningful in allowing for an invited speaker to speak than the fact that “representatives from the Office of Student Affairs and the Office of Public Affairs and Communications were present at the event…, as well as marshals, legal observers and at least one plainclothes police officer stationed outside.” A security apparatus always helps things go down smoothly.

All these things were coordinated between the university’s Assistant Vice President for University Life and the presumably pro-police student group Yalies4Palestine. I hope the university is equally willing to provide such support for any and all student groups, presumably with the same cost-sharing arrangements. Things might be overly tamped down, but a lot more interesting voices might be heard on campus, with “heard” being the operative word.

What I found especially interesting was the last quote. It’s a pleasure to see students reasoning their way toward an understanding of the value of heckler’s veto doctrine. They may find that rather than get there contract by contract, they should just insist that students honor the existing university policy all the time and that the university honor its disciplinary obligations with equal consistency. Everyone might find that it’s a pretty good arrangement.

Posted by Paul Horwitz on December 6, 2023 at 05:12 PM | Permalink | Comments (0)

Harvard Hillel responds to President Gay

Harvard Hillel was not pleased with university President Claudine Gay's testimony, especially her answer about "context" to Stefanik's question. It sent the following email:*

[*] For those wondering, since I did not go to Harvard: I donated to Harvard Hillel in Dan's memory years ago. One cannot escape their mailing list.

Here is the key paragraph:

We are appalled by the need to state the obvious: A call for genocide against Jews is always a hateful incitement of violence. President Gay’s failure to properly condemn this speech calls into question her ability to protect Jewish students on Harvard’s campus. Chants to “globalize the intifada,” an endorsement of violent terrorist attacks against Jewish and Israeli civilians, and “from the river to the sea,” an eliminationist slogan intended to deprive Jews of their right to self-determination in Israel, have become tragically routine at Harvard. President Gay’s testimony fails to reassure us that the University is seriously concerned about the antisemitic rhetoric pervasive on campus. We call on President Gay to take action against those using threatening speech that violates our community standards. 

Again, this errs as matter of basic U.S. free speech law. And note the move--in the first sentence it is incitement of violence, in the second it is threatening. But with more--- context---nothing in this paragraph is legally accurate.

In fairness to Hillel, its mission is different than that of members of Congress or attorneys; it acts on commitments other than free speech. But if politics is the art of the possible, Hillel would be better served by recognizing and working within the limitations that free-speech commitments impose, rather than denying they exist and thus demanding what a university or government cannot give.

I reprint the email in full after the jump.

Continue reading "Harvard Hillel responds to President Gay"

Posted by Howard Wasserman on December 6, 2023 at 10:16 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

More oxes, more gore, more free-speech opportunism

The House Committee on Education and the Work Force held a hearing with the balanced title Holding Campus Leaders Accountable and Confronting Antisemitism, with Claudine Gay (Harvard), Liz Magill (Penn), Sally Kornbluth (MIT), and Pamela Nadell (History & Jewish Studies, American). Video (I have not had a chance to watch yet) here; news reports here, here, here, and here. More detailed report here.

Committee Chair Virginia Foxx (N.C.) set the tone in her prepared remarks:

Today, each of you will have a chance to answer to and atone for the many specific instances of vitriolic, hate-filled antisemitism on your respective campuses that have denied students the safe learning environment they are due. As you confront our questions in this hearing, remember that you are not speaking to us, but to the students on your campus who have been threatened and assaulted and who look to you to protect them.


Harvard also, not coincidentally but causally, was ground zero for antisemitism following October 7th and is the single least tolerant school in the nation according to the Foundation for Individual Rights and Expression’s 2024 College Free Speech
Rankings. UPenn is right behind them at 247th of 248. MIT is in the middle of the pack.

First, I am old enough to remember Republicans seeing large numbers of students who claimed to have been denied a "safe learning environment" because of "vitriolic, hate-filled" speech (anti-Black, anti-immigrant, anti-LGBTQ+, anti-feminist)--and deriding those students as "snowflakes" who need to grow up and learn to hear and engage with ideas they disagree with, even if they find them offensive. Now, students are "threatened and assaulted" by offensive speech; universities have failed to protect these wronged non-snowflakes; and students earn invitations and special mention at congressional hearings. I also am old enough to remember Republicans complaining about universities issuing public statements about current events and condemning speakers for certain expression. Now university leaders lack the "moral clarity" and "courage to delineate good from evil and right from wrong." And thus to do what? I guess shut down or sanction offensive speech or issue public statements against it.

Second, Foxx's demand for universities to "do something" about all this antisemitism conflicts with the criticism in the second quoted paragraph. Because much of the antisemitic speech people complain about remains constitutionally protected,* shutting down or criticizing that speech would earn these schools worse rankings in FIRE's next survey. FIRE evaluates not only formal university efforts to shut down speech but also the extent to which students "feel" that they cannot speak because fellow students and university officials think less of them and/or criticize them for their ideas. Both are what Foxx seems to demand of Harvard, Penn, and MIT. (If it is not clear, I think the FIRE survey is scientifically nonsensical. That Republicans have weaponized it in this way all the more so).

[*] Examples of actual assaults or unprotected speech are relatively rare. Some unprotected speech and conduct--occupying buildings, interrupting classes, projecting images onto buildings, chalking--lacks protection regardless of its antisemitic content. We perhaps can make hay if schools refuse to punish those who engage in unprotected activities or punish them differently than those who engage in the same activities with different messages. (See, e.g., the non-punishment of some pro-Hamas/anti-Israel events at MIT).

Things unsurprisingly went downhill from there. The exchange garnering the most coverage features Rep. Elise Stefanik (NY) asking whether calling for the genocide of Jews (a fair interpretation of "from the river to the sea") violates university codes of conduct or constitutes bullying or harassment. Magill, Gay, and Kornbluth all responded with some form of "context matters," looking at whether it is directed or whether it crosses into conduct.

But context does matter, at least for public universities and private universities (such as these and most elite research universities) agreeing to abide by the First Amendment--as these and other Republicans have been demanding for years when it comes to speakers they like demeaning, offending, and harassing listeners they don't like. A general call for genocide that does not cross into true threats, incitement, or harassment--which is to say most such speech--retains constitutional protection and thus cannot violate a code of conduct interpreted in light of free-speech concerns. Perhaps the presidents' erred in not framing their discussion of context in an explicitly First Amendment framework. While discussing "context" and "wide berth to freedom of expression," none presented in concrete terms of what this means for codes of conduct and what speech is permitted on campus. Or perhaps respond this way--"if Nazis can march in Skokie, Hamas-loving students can chant 'river to the sea' at Harvard."

I apologize that I am becoming (have become?) redundant on this. But the point remains relevant so long as political leaders (and advocates, some of whom I assumed knew better) make bad-faith statements at bad-faith hearings that show their commitment to free speech lasts as long as their agreement (or lack thereof) with the speech at issue and their sympathy (or lack thereof) with the targeted-and-unsafe student group. And I return to my initial question--what do they expect university presidents to do and who will they react when university leaders address other "viotriolic, hate-filled" speech? On that, this Politico interview with Eugene Volokh hits on many of these issues. Although the piece mentions the coming hearing, Volokh does not talk about it in the Q&A. Based on his answers, I expect (hope) he would be as critical of this hearing and this general conversation.

The 3d Annual Law vs. Antisemitism Conference, hosted in February at FIU, will include a roundtable discussion on campus antisemitism and free speech. We will try to work through these issues.

Posted by Howard Wasserman on December 6, 2023 at 10:04 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

What John Roberts Could Learn From Niccolò Machiavelli

My new essay in Washington Monthly explains why the Supreme Court could have avoided a lot of trouble by consulting the work of a certain Renaissance political theorist. Here is the gist:

What John Roberts Could Learn From Niccolò Machiavelli

It takes a lot for a historical figure to be memorialized for nearly 500 years as an eponymous adjective. Still, Niccolò Machiavelli achieved that feat as the progenitor of devious political scheming. Nobody today wants to be called Machiavellian, but the truth is that Machiavelli provided some excellent advice to his patrons in 16th-century Florence, aspects of which remain valuable today. Even the Supreme Court, it turns out, could have benefited from Machiavelli’s counsel regarding their adoption of written ethics rules.

As Machiavelli explained in The Prince in 1532 when a disease begins, “it is easy to cure but difficult to diagnose; after a time . . . it becomes easy to diagnose but difficult to cure. So it is in politics.” And so it was with the Supreme Court’s belatedly-issued Code of Conduct.

The court spent decades refusing to adopt a code of conduct at a time when it could have announced clear ethics standards unencumbered by the revelations that disastrously surfaced this year. When the court finally acted, it was already mired in scandals involving the sketchy finances of several justices. By then, as Machiavelli predicted, it was too late for a code to “cure” the court’s ailing reputation. 

You can read the full essay in Washington Monthly.

Posted by Steve Lubet on December 6, 2023 at 06:37 AM | Permalink | Comments (0)

Tuesday, December 05, 2023

Court dumps tester case

On mootness grounds in a 3+-page opinion from Justice Barrett; the court vacates the lower-court judgment under Munsingwear.  The interesting stuff is two opinions concurring in the judgment.

Justice Thomas argues that the plaintiff lacks standing and, because standing is antecedent to mootness, the Court should resolve the case on that basis. His standing analysis--whether intentionally or not--illustrates why this is all merits. Thomas repeatedly describes standing as being about legal rights: " To have standing, a plaintiff must assert a violation of his rights;" plaintiff "lacks standing because her claim does not assert a violation of a right under the ADA, much less a violation of her rights." But the Court describes standing as being about injury, not legal right; standing asks whether plaintiff suffered an injury, while the merits consider whether he has a right under some legal source and whether that right was violated. Fletcher's essential insight, which Newsom carries forward, is the impossibility of separating the tww--one cannot suffer an injury unless a legal right attaches to it. I think either would say, on a clean slate, Laufer loses because she does not have a right to information under the ADA and thus loses on the merits. Is Thomas moving towards that view?*

[*] The injury/right separation becomes clearest for third-party standing--the plaintiff suffered an injury while some third party suffered a violation of her rights. Of course, Thomas rejects third-party standing.

Justice Jackson concurs in the judgment to argue that the Court grants Munsingwear vacaturs too automatically, although she agrees with vacatur here because the plaintiff--the victor below--unilaterally caused mootness. Jackson would ratchet up the burden on the party seeking vacatur to show a specific harm beyond disagreement with the lower-court judgment. There is no right to appellate review and the lower-court judgment--valid and binding and precedential when rendered in a live action--is entitled to a presumption of correctness and value that warrants its continuation.

Posted by Howard Wasserman on December 5, 2023 at 09:00 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Monday, December 04, 2023

Tushnet on Ephemeral and Enduring Constitutional Scholarship

I've written here before that I always find Mark Tushnet's posts on legal scholarship at Balkinization must-read stuff. I wish he posted more often. Happily, he has given us three interesting, related posts--here, here, and here. In them, he explores what makes for "ephemeral" and "enduring" legal scholarship in constitutional law. His overarching view is that "a great deal of doctrinal and normative scholarship in constitutional law is quite ephemeral." Scholarship that "develops the normative basis for specific outcomes in real constitutional controversies" is hampered by the felt need to "track, to some significant extent, contemporary or recent Supreme Court decisions," which "change in normatively relevant ways often enough to make work that satisfies [that] condition [ ] ephemeral." "Normative discussion of the structural Constitution," in which "authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem," is generally overly focused on some recent event, and generally involves a long-enough time frame that "by the time you might be able to get those changes made, things have changed so much that" that the work is again renedered ephemeral. Enduring works of constitutional scholarship, in his view, "identify some things about the deep structure of the topics they cover. They provide a vocabulary for discussing the issues within their scope no matter what those issues are," in a way that is both less time-bound and more removed from immediate political controversies. Tushnet sums up as follows:

I’m led back to something I wrote in the first of these posts: that normative scholarship that focuses on recent Supreme Court cases tends not to endure. Maybe the point is that mostly that scholarship thinks that it’s getting at something deep (about distributive justice or equality or …) but it’s actually doing no more than present a contemporary partisan position as a deep truth. Again, the article[s] that endure let us think about the issues we care about no matter what side we take in contemporary controversies.

The posts are long and well worth reading. (I would say "long but well worth reading" but--come on. Look who's talking.) They are interesting, exploratory, impersonal--he is talking about a phenomenon, a "sociology of the legal academy"; he's not throwing stones or calling anyone's work crap--and tough-minded, written in the knowledge that his conclusions about ephemerality not only embrace some of his own work but, and perhaps more importantly, that of friends, allies, and colleagues.  

Seeing these posts makes me reflect yet again that I don't see as much serious, impersonal, tough-minded writing about scholarship in our field as I would like these days. By "about scholarship" I don't mean just meta-commentary about what we do, although I surely mean that too. But I don't even see as much simple substantive criticism of other scholars' work as I would expect--not good criticism, and certainly not good criticism of one's fellow travelers' work. I tend to blame political and cultural siloing, along with a heavy dose of therapeutic culture, which is not good for intellectual work. The relatively monocultural politics of the legal academy don't help. (There are differences in those politics seen up close, of course.) But that's not the whole of the story. Broadly speaking, I see a good deal of scholarship and public-facing, ie. social media, discourse in which any serious criticism is directed only, and merely, at one's adversaries, at people outside one's silo. And that's if one is lucky. Often enough, writing outside one's silo is simply disregarded, or it's dismissed in extravagant, shallow, and uninteresting terms. The better instances of criticism, when they appear, are not so much thorough as prosecutorial, with all the strengths and limitations that entails.

Within one's silo, there's an awful lot more praise--also extravagant, shallow, and uninteresting--than criticism, at least publicly. This seems to be a function of an academic culture in which "mutual support" is seen as an unalloyed good and apparently entails an absence of tough, impersonal criticism--again, at least publicly. I understand the roots of this, but it seems to me that not seriously criticizing one's friends or politically aligned fellow scholars is tantamount to not respecting them or taking them seriously as scholars and intellectuals. (Mark has been reading through his library and recently had tough words for my first book. I could have cried about it, I suppose--except that his actually engaging with the book is a lot better than some meaningless, enthusiastic blurb that signifies friendship rather than actual interest.) What I see on social media, when I visit it, is a great deal of "Fabulous new article by..." and "Excited to share X's terrific new piece," followed by a round of mutual compliments. Perhaps it was a terrible mistake for scholars to befriend each other on social media.

I suppose this is a form of mutual support. But law school and legal scholarship are most definitely markets, and what it mostly looks like to me is marketing, logrolling, and reciprocal flattery. Surely there is a substantial element of hustling in all this, because I can't imagine anyone enjoying it for its own sake or learning from it. At least with respect to the legal academy, the difference between "mutual support" and "life under late capitalism" seems to me to be rather hard to discern.  

Posted by Paul Horwitz on December 4, 2023 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

Misinformation at the Oakland City Council

Presented here without comment.


Posted by Steve Lubet on December 4, 2023 at 02:07 PM | Permalink | Comments (0)

A Thought Experiment About Richard Nixon

It's 1975. Richard Nixon is on trial for Watergate crimes. He does not have a pardon. His lawyers and supporters ask the Court to dismiss the prosecution. Why? Because the trial, conviction, and/or imprisonment of a former President would be bad for America. I think it's fair to say that a court then (and now) would reject such an argument. Public policy concerns do not allow courts to set aside the law as applied to the facts for a given defendant. Only a pardon can take the wider public interest into account once a criminal prosecution is brought.

Many of Donald Trump's arguments in the ongoing Section Three litigation are similar to the hypothetical Nixon case. The claim is that disqualifying an insurrectionist former President from the ballot would be bad for America. A court cannot and should not consider these policy arguments. Only Congress--through its amnesty power--can.

This issue was briefly discussed in a District Court opinion upholding the constitutionality of Ford's pardon. In Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975), the Court said: "Few would today deny that the period from the break-in at the Watergate in June 1972, until the resignation f President Nixon in August 1974, was a ‘season of insurrection or rebellion’ by many actually in the Government." Nevertheless, President Ford exercised "prudent public policy judgment" in pardoning Nixon.

Whether you agree with Ford's pardon or not, it was his call to make and his alone. Likewise, only Congress can give Donald Trump a Section Three waiver from his season of insurrection or rebellion. Courts can look only at whether his conduct was disqualifying.  

Posted by Gerard Magliocca on December 4, 2023 at 11:40 AM | Permalink | Comments (0)

Sunday, December 03, 2023

Swing Justices and "Legacies," Again

Some of the celebrations--quite justified--and remembrances of Justice Sandra Day O'Connor, focusing on changes on the Court since she retired, have focused on her "legacy" and worried that it is being undone. She was evidently not happy about that either, according to this excellent but odd obituary. (Excellent because of its detail and clean prose; odd because of its urgent insistence, not entirely respectful to her memory, on fixing her in the public annals as a liberal rather than a conservative, a feat that is achieved partly by excoriating the current Court but mostly by relegating a great many of her views and opinions to the 43rd paragraph and lower.) This reminds me that we went through the same discussion quite recently. In September, a Washington Post story argued that former Justice Anthony Kennedy’s "mark is fading fast—and is already erased in some areas." At the time, I suggested in response that for a number of reasons, a swing justice's legacy is bound to be evanescent.  

Not to repeat myself, but the same thing applies here--and not only because of the current Court, despite its 2021 and 2022 terms. (My guess at the moment is that the 2023 term will be more of a term that uses the Fifth Circuit as a foil to signal that it has its limits and will move only when it wants to. Of course I could be wrong, and there's little point in predicting the future, since it will come along presently anyway.) On a closely divided court, a swing justice doesn't get a legacy; she (or he) gets power instead. That's no small thing, and it can conduce to the good. But that power derives from the balanced instability of that court on which the swing justice serves as the fulcrum. Inevitably, with a change in personnel, one of two things will happen: the balance will shift decisively in one direction or the other, depriving the swing justice of her pivotal power; or a different fulcrum point will emerge, giving some other justice the swing-vote power and putting the former swing justice's compromises in play once again. In Justice O'Connor's case, both things happened in reverse succession: after Justice O'Connor retired, first Justice Kennedy became the swing justice and then, after both were gone, the balance of the Court shifted decisively and neither justice's compromises were likely to remain in place. To quote a sage:

The "legacy" of a swing justice does not have much to do with the future at all. The value of a swing justice lies in the present: in striking compromises that smooth things over for a little while in an area that is contentious on and/or off the Court. That's not necessarily a bad thing and may be a very good one. But it should be celebrated for what it is: a compromise, a fix for an immediate need, a bit of gaffe tape at a useful moment to make sure the car doesn't go careening in one direction or the other. What it is not is a recipe for a long-term "legacy."...


Posted by Paul Horwitz on December 3, 2023 at 11:46 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, December 02, 2023

Oxes, goring, etc.

One important argument for protecting speech you find offensive rests on the impossibility of laying down a principled standard to separate speech and speakers you find offensive from speech and speakers that others find offensive but that you like. If you succeed in getting government to sanction the former, it opens the door to government sanctioning the latter. And you cannot do anything about it without drawing accusations of hypocrisy.

Case in point: Universities have sanctioned faculty members for pro-Israel/anti-Palestinian/anti-Hamas speech. In several ways, they present the mirror of cases involving anti-Israel/antisemitic/pro-Palestinian/pro-Hamas speech:

    • No one can agree on which is which. Did the USC prof wish death on Hamas or on all Palestinians? Did he intentionally step on the memorial display or only accidentally? The current crisis has created a counterpart to "is anti-Zionism antisemitism"--is "anti-Hamas anti-Palestinian." Whatever the merits of the questions and whatever the distinctions one can draw (based on one's views of the content at issue), government should not be drawing them.

    • Apologies are as sincere as the listener is sympathetic to the apologist's speech. One case involves a doctor at Johns Hopkins who called Palestinians "morally depraved" and "savage animals" and responded "god willing" to claims that his call for reclaiming every inch of Israel would produce large-scale slaughter. He apologized, saying his "messages in no way reflect my beliefs, me as a person, a physician, a friend, or colleague." A reporter for the Washington Free Beacon called for Hopkins to forgive the doctor. Why? Because the doctor treated the reporter's daughter--"as the father of a Klugman patient, I know he means it. Why? Because I witnessed with my own eyes how he delivered medical care.” I will let the absurdity of that last part sit without comment.

It would be great if people calling for bans on SJP and similar campus speech would see this story as a warning, as a logical risk (if not inevitability) of their efforts. I doubt it will.

Posted by Howard Wasserman on December 2, 2023 at 06:13 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday Music Post - Carole King's Goffin/King Medley

Before launching her legendary solo career in the 1970s, Carole King worked in the Brill Building, writing a series of hits with her then-husband Gerry Goffin. In total, King wrote or co-wrote an astounding 118 songs that charted on the Hot 100, beginning when she was a teenager, although I don't know how many were with Goffin (she wrote the music, he wrote the lyrics).

Today's post is from a 1988 television special, with Carole King performing the greatest Goffin/King songs with occasional guests (including her daughters).

The clips are on The Faculty Lounge.


Posted by Steve Lubet on December 2, 2023 at 05:46 AM | Permalink | Comments (1)

Friday, December 01, 2023

Sandra Day O'Connor (1930-2023)

Here are some excerpts from my 2019 review of Evan Thomas's First: Sandra Day O'Connor and Joan Biskupic's The Chief: The Life and Turbulent Times of Chief Justice John Roberts in The New Rambler Review:

If John Roberts’s “fast track” to “the best job” took him almost ineluctably to the U.S. Supreme Court, while maintaining a cool demeanor that can blunt even the best attempt at biography, Sandra Day O’Connor followed a far more winding road, even an adventurous one, as detailed in Evan Thomas’s absorbing First: Sandra Day O’Connor. She did not go from law school to prestigious clerkships, and then to an insider’s position in the White House. In fact, she was unable even to get interviews with top California law firms, although she had graduated at the top of her class at Stanford. One Los Angeles firm did let her in the door, but only to offer her a secretarial position, explaining that “our clients won’t stand [for] being represented by a woman” (43).  

Before she was nominated by President Ronald Reagan in 1981, O’Connor had been an unsalaried assistant district attorney in California, a civilian lawyer in the U.S. Army’s Quartermaster Corps in Germany, and then a stay-at-home mom and a storefront lawyer in Phoenix. Her true professional ascent only began when, at age 39, she was appointed to a vacancy in the Arizona state senate. Within a few terms, she became the first woman majority leader in any U.S. legislature, followed by stints as a state trial court judge and appellate court justice. 

O’Connor’s childhood and youth demanded independence and resourcefulness, preparing her well for later detours and disappointments. She was born on her parents’ cattle ranch—the 160,000 acre Lazy B, in an arid corner of southeast Arizona—in a house that had neither electricity nor indoor plumbing. Because there were no schools within reasonable distance of the Lazy B, six-year old Sandra Day was sent to El Paso, where she lived with her maternal grandmother while attending a private elementary school. She returned to the ranch for summers, and then as an adolescent, where she rode horses and joined in calf branding (and castrating) under the stern, and sometimes unforgiving, supervision of her father. 

Always a precocious student, Sandra Day entered Stanford in 1946, at age 16, having skipped two grades. She was one of only a few women in her class. Graduating in only three years, she entered Stanford law school when she was 19 years old. 

In law school, Sandra Day was surrounded by WWII veterans, one of whom was William Rehnquist. For many years it was reported that the two law students had casually dated, and Rehnquist told his clerks only that they had “gone to the movies” once or twice (219). Thomas reveals that there was more to it. Their dating had been serious, with Rehnquist proclaiming his love during their third year at Stanford. “I know I can never be happy without you,” he told her. “To be specific, Sandy, will you marry me this summer” (42). 

Continue reading "Sandra Day O'Connor (1930-2023)"

Posted by Steve Lubet on December 1, 2023 at 12:21 PM | Permalink | Comments (3)

JOTWELL: Vladeck on Katz and Rosenblum on legal history in the courts

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Andrea Scoseria Kata & Noah A. Rosenblum, Removal Rehased, 136 Harv. L. Rev. F. 404 (2023), showing that the historical record as to the President's removal power is not as certain as judges and scholars (including Aditya Bamzai,Saikrishna Bangalore Prakash, to whom their essay responds) suggest.

Posted by Howard Wasserman on December 1, 2023 at 10:56 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, November 30, 2023

Judicial Ethics Reform Through Binding Resignations

How can Supreme Court ethics reform respect judicial independence but also have teeth? Ian Ayres and I have a proposed answer. Here are some excerpts from our post over at Balkanization:

In the wake of recent controversies and apparent ethical lapses at the Supreme Court, the justices have now agreed to abide by a “code of conduct.” But while this new code outlines laudable principles, it conspicuously lacks any enforcement mechanism. We suggest that the justices rectify that shortcoming and, in the process, solidify the federal judiciary’s commitment to ethical behavior. In brief, the justices should have to resign if a bipartisan group of federal judges so requests. 


To illustrate, a federal statute might create a Supreme Court ethics council comprised of, say, 20 randomly selected lower court judges, each with a two-year term. The resulting council would reflect the bipartisan makeup of the federal judiciary. To further protect against political favoritism, the council might be able to call for a justice’s resignation only if more than, say, three-quarters of its membership so voted.


A more serious objection is that a justice could attempt to renege on a conditional resignation. But the commitments could be rendered binding by court rules or a federal statute. Doing so wouldn’t transgress the Constitution, which allows federal judges to leave office through resignation, including resignations conditioned upon future events. And the kind of resignation that we envision would only promote the constitutional values of judicial independence and impartiality.

Posted by Richard M. Re on November 30, 2023 at 09:53 AM | Permalink | Comments (2)

Panel event TODAY at Notre Dame: "The Rising Tide of Antisemitism on American Campuses and Beyond"

Notre Dame Law School and our Religious Liberty Initiative are hosting TODAY an important, if distressingly timely, event on "the rising tide of antisemitism on American Campuses and Beyond." The event will be live-streamed.

On November 30, Notre Dame Law School Professors Avishalom Tor and Stephanie Barclay will host the event, "The Rising Tide of Antisemitism on American Campuses and Beyond" at the McCartan Courtroom in Eck Hall of Law.

The panel discussion includes a keynote address delivered by Professor Ruth Wisse, Martin Peretz Professor of Yiddish Literature and Comparative Literature Emerita at Harvard University.

The panelists include:

Ken MarcusEsq., Chairman of the Louis D. Brandeis Center for Human Rights Under Law
Most Reverend Robert J. McClory, Bishop of the Diocese of Gary
Professor Jeffrey VeidlingerJoseph Brodsky Collegiate Professor of History and Judaic Studies at the University of Michigan

The event will begin with an introduction from Professor Avishalom Tor, Professor of Law and Director of the Notre Dame Program on Law and Market Behavior (ND LAMB) at Notre Dame Law School.

The opening remarks will be delivered by Dean G. Marcus Cole, Joseph A. Matson Dean and Professor of Law at Notre Dame Law School.

The panel discussion will be moderated by Professor Stephanie Barclay, Professor of Law at Notre Dame Law School and Faculty Director of the Notre Dame Religious Liberty Initiative.


Posted by Rick Garnett on November 30, 2023 at 08:50 AM in Rick Garnett | Permalink | Comments (0)

Justice Jackson's Conference Notes from Youngstown

His summary of his own view is "would affirm doing little damage as possible." It's a good judicial motto for many cases.


Posted by Gerard Magliocca on November 30, 2023 at 08:27 AM | Permalink | Comments (0)

Wednesday, November 29, 2023

Proofreading the Justices

I was at the Library of Congress today looking once again at Justice Jackson's papers on Youngstown. Here's one interesting letter that he received after the opinion was issued:


A covering note says that a comma was, in fact, added to the slip opinion in response.

Posted by Gerard Magliocca on November 29, 2023 at 09:36 PM | Permalink | Comments (0)

A Spector Is Haunting the University

This excellent article by Professor Emerita Donna Robinson Divine, originally at JNS, is reposted here with her permission:

A Specter Haunting the University


Donna Robinson Divine is the Morningstar Family Professor of Jewish Studies and Professor of Government Emerita at Smith College's Department of Government.

That Hamas’s Oct. 7 rampage of barbaric atrocities has become a symbol of “Palestinian liberation” on campus is unsurprising. The pro-Palestinian movement and its ideology have long been a specter haunting the university.

This moral descent of academia has resulted in proposals to reinvigorate protections for free speech and appeals to university presidents to ensure safety and respectful interactions. These are laudable goals but insufficient. They cannot change a dynamic that is anchored in the university’s dedication to a radical vision of social justice, which compromises and corrupts what was once taken for granted as the core principle of higher education: the advancement of knowledge.

A progressive ideological vision has acquired sacred status on campus. It has taken command of the very words spoken in classrooms and lecture halls. A colonization of language has permeated every scholarly discipline, with a particularly degrading effect on the study of the Middle East. As a result, the Israeli-Palestinian conflict is no longer seen as a struggle to be resolved by compromises on tangible goods, such as land or holy sites. It is propagandized as a battle over a past in which, according to the permitted vocabulary, the “wrong side of history” prevailed.

Continue reading "A Spector Is Haunting the University"

Posted by Steve Lubet on November 29, 2023 at 05:35 AM | Permalink | Comments (0)