« Asymmetrical Censorship | Main | John Bingham and the Fifteenth Amendment »

Thursday, March 16, 2023

On "Asymmetry" and "Civil Discourse" -- Or, Why Howard is Wrong

In my view, the treatment of Judge Kyle Duncan at Stanford Law School was awful.  And, in my view, the efforts of a number of academics and commentators to downplay the awfulness of that treatment is depressing.  

More specifically, though:  My colleague Howard has two recent posts on the matter that, I think, are mistaken.  First, in "Asymmetrical Censorship", Howard contends that the "left" censors using private power while the "right" does so using state power.  This contention, it seems to me, is wrong.  It's not wrong, of course, to distinguish (both normatively and in terms of effects) the censorship that is imposed by private power from the censorship that is imposed by state power (and both kinds of censorship exist).  But it seems, to put it mildly, incongruent with the facts to suggest that the "left" eschews using state power to silence/punish expression.  [Ed.: Insert here a gabillion links.

In his other post, Howard returns to a position he has developed in other posts, and says that "the 'civil discourse' trope . . . is and always has been bullshit."  No, it isn't. (He also says, in passing, that Judge Duncan "went to Stanford itching for a fight . . . and would have been as dismissive and rude to silent protesters."  I have no reason, and neither does Howard, to think this is true.  We both do have reasons, though, to think that Judge Duncan was set up, and that the Administrator prepared weird and offensively condescending remarks for delivery.)  It is not "bullshit" to endorse a norm that, when speakers are invited, in keeping with established procedures, to deliver remarks, in a space that is not Speaker's Corner [especially a higher-education space], those who dislike the speaker, or his or her views, should (a) attend and listen, and ask questions in keeping with usual practice; (b) avoid the event; or (c) protest the event, outside the space.)

It's also not too much to think that students at one of our nation's best law schools should be able to better express disagreement with a speaker's (in their view) misguided views than to yell about the speaker's and his or her spouse's intimate practices.  But, I guess, that's a separate question.

Posted by Rick Garnett on March 16, 2023 at 06:15 PM in Rick Garnett | Permalink


DELTA HYGIENE dispose d’une équipe de désinsectiseurs professionnels qui intervient rapidement pour vous débarrasser
des insectes efficacement et durablement.

Posted by: DELTA HYGIENE | Apr 19, 2023 9:51:27 AM

DELTA HYGIENE dispose d’une équipe de désinsectiseurs professionnels qui intervient rapidement pour vous débarrasser
des insectes efficacement et durablement.

Posted by: Ridha Ben Jamaa | Apr 19, 2023 9:40:39 AM


So I dared to weigh in on Professor Wasserman too; signed my name to the comment rather than as an Anon (see below if not yet deleted) and my SSRN Author page listing my 30+ papers and amicus briefs now comes up as miraculously removed.

And some here will no doubt applaud the suppression as fully deserved.


So much free inquiry and exchange of information and ideas in the discourse community.


Posted by: Wolfgang P Hirczy de Mino | Mar 25, 2023 12:48:37 PM

“...the separate question of materials *for children* as being distinct from adults.”

It is important to note those materials that refer to sexual acts that demean the inherent Dignity of the human person as a beloved son or daughter, brother or sister, husband or wife, father or mother, and thus depict pornography, are illegal for children, while remaining pornography for adults.


Posted by: N.D. | Mar 23, 2023 9:18:27 AM

It is a shame that HW's post allows no comments, and while this is a private platform, is to me telling about the welcoming of "counterspeech." So responses to that post can best fit here as an alternative.

HW's examples of asymmetry are, beyond some superficial appeal, bogus for several reasons.

1. He lists social-media deplatforming as a private-actor example, ignoring the fact that much of the recent uproar has concerned the role of the *federal government* in working with Twitter on such "private" action. Plus, the administration attempted creation of a "disinformation" entity to go forth an sequelch "bad speech" seemed like government action to me? On top of that, you've got all the proposals from lefties to regulate social media, too.

2. He ignores all of the left's attempts to shut down what is essentially viewpoint expression in multiple guises: shutting down crisis pregnancy centers for merely discouraging abortion (see NIFLA), compelling speech under the guise of anti-discrimination (see the 303 website case, as well as Elaine's Photography), shutting down the NRA's advocacy (after all, the NRA doesn't make guns) by going after their financial institutions (New York).

3. Meanwhile, on the alleged censorship on the right, he cites all the battles over schoolbooks, sidestepping (a) the question of whether curricular choices, or limited-resource library purchases, are legitimately classified as "censorship," and (b) the separate question of materials *for children* as being distinct from adults.

4. Overlapping points 3 and 4 is the case of the praying high-school coach in Seattle. The left's objection to his silent prayer on his own post-game time was that he, as coach, was still on the State's time and dime as a school employee, so it wasn't private speech. Why is that not even more clearly so for the school's assignment of books? That means that book-selection IS government speech, not the private speech of the teacher or librarian. Thus, that debate is merely a who-decides-FOR-the-government, and is about the extent and exercise of democratic control over a system established, funded, and justified by democratic means. Sure, people can reasonable disagree on whether such power should be exercised by which level of government, but that is not a matter of public control over private speech.

But if you ignore all that and accept his topical gerrymandering, then sure, great point.

Posted by: Another anon | Mar 22, 2023 3:14:27 PM

Your blog work is excellent. I visited your website every day. Thank you and keep up the good work.

Posted by: doramasflix | Mar 21, 2023 2:21:27 PM

This is just a test:


Who knew?

Posted by: N.D. | Mar 18, 2023 3:22:24 PM

“That's your argument?? And you teach law? God help us.”

"[Ed.: Insert here a gabillion links.] ",

Hold your tongue, or your key pad, for that matter.

I know for a fact, that Professor Rick and his wife, Nicole, have been nothing but a Blessing for Notre Dame.

Personally, I would have used bajillion, as it sounds better, as in , since there exist within every human person’s body, a bajillion cells, that depend on FURIN receptors as both lock and key, it is only logical to assume that when it comes to maintaining health and fighting disease, a targeted approach to regulated FURIN in the short term, versus a systemic approach, for the long term, has the potential to be beneficial as it is true that, “ A separate problem is that furin has essential roles in our cell,” says Racaniello, so if you block the enzyme, “you will have toxicity associated with that.” Plenty of drugs have been developed with the aim of inhibiting furin, but none have made it through to patients. “Furin inhibitors are quite toxic,” confirms Izaguirre.
This does not rule them out. Inhibitors could perhaps be delivered for a short period of time to knock down viral load at a critical juncture. “It might be possible that furin inhibitors are only applied for a very short amount of time, to limited unwanted side effects,” agrees Pöhlmann”

Posted by: N.D. | Mar 18, 2023 3:07:00 PM

The fact that every beloved son and daughter, of a human person, from the moment of conception, is a human person, Created in The Image Of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, The Most Holy And Undivided Blessed, worthy of Redemption, to live in Loving relationship in communion with The Ordered Communion Of Perfect Complementary Love, The Blessed Trinity, In no way, shape, or form , changes the fact that human persons are not, in essence chattel, and thus we can know through Faith and reason, the act of abortion is a Human’s Right issue, not a State’s Right issue. It is never necessary, nor is it proper, to destroy a human life to save a human life, and if, in trying to save the life of both mother and child, the child dies, that is not an act of abortion.

Posted by: N.D. | Mar 17, 2023 3:01:21 PM

Also note that Professor Howard Wasserman does not allow responses to most of his blawg posts. - Comments closed.

So, no opportunity to offer corrections of false assertions of facts, no opportunity to offer a different view or to take issue with his argumentation, and no opportunity to complain about his use of vulgar language, like calling fellow members of the civil discourse community or participants in the jurisprudential policy-making arena "schmucks".

Nongovernmental suppression of countervailing speech, but suppression nonetheless.

And denigration of folks with different views or unorthodox arguments or ideas -- from a position of academic soapbox -- without those folks having an opportunity to retort and raise the level of discourse above the street/gutter elevation, unseemly as it is for professors of law.

Posted by: Wolfgang P. Hirczy de Mino | Mar 17, 2023 12:59:43 PM

Seems like it's just the fact that the left is generally more powerful in media/cultural spheres and the right is generally more powerful in electoral/legal spheres explains any observed difference in how censorship is applied.

Regarding being setup, I suspect it depends a lot on what you mean. No doubt the DEI official was aware that students intended to protest (if not explicitly warned I'm sure she's aware enough to guess). I don't know if preparing for such a situation really counts as a setup (though I also agree there is no real evidence the judge went there itching for a fight).

While I think the DEI official's remarks were inappropriate (you don't invite someone as a guest and then lecture them about how they better be worth the trouble) I'm sure that from her point of view she was bending over backwards to defend the judge's right to speak despite the fact that she probably believes his very presence on campus was a kind of grave harm to the student body.

Posted by: Peter Gerdes | Mar 17, 2023 11:56:55 AM

The problem with Aristotle and his belief regarding Virtue Ethics being the mean between two extremes, is that when it comes to The Law Of Noncontradiction, (p cannot in essence be not p), an abundance of Truth and an abundance of Love, rightly ordered, is Virtuous, while a deficit of Truth and a deficit of Love, is disordered and lacking in Virtue.

When we know longer respect the inherent Dignity of the essence of being, in essence, a beloved son or daughter, brother or sister, husband or wife, father or mother, no one should be surprised that it follows, as the night, the day, that we know longer uphold respect for the desire that our children grow up to be young ladies and young gentlemen, seeking in all things, The Good, The Beautiful, and That Which Is True.

“This above all: to thine own self be true,
And it must follow, as the night the day,
Thou canst not then be false to any man.”

Posted by: N.D. | Mar 17, 2023 11:44:05 AM

"[Ed.: Insert here a gabillion links.] "

That's your argument?? And you teach law? God help us.

Posted by: Hither & Anon | Mar 17, 2023 10:23:23 AM

This is really a question for Professor Wasserman, not Professor Garnett, but I don't understand what the "civil discourse trope" is even supposed to mean. Professor Wasserman presents the "civil discourse trope" as some sort of ideal of civil engagement, in which each side substantively answers the most trenchant critiques of the other side——speaker and any vocal critics in the room going back and forth until they have reached a true and harmonious understanding of the others' premises. Because that ideal is never reached, Wasserman dismisses the argument for civil discourse "nonsense" and "bullsh*t." But I thought the claim about civil discourse was about marginal improvements to speech discussions enabled by non-disruption, not a claim that perfection will be attained. That is, the idea is that following the rules about who has the mic at any given time lets each side get its message out the way it wants, responding as it wishes to the other side, so the audience interested in hearing the message can go hear it and decide what it thinks.

Posted by: Anon Anon | Mar 16, 2023 7:31:20 PM

Post a comment