Monday, November 27, 2023

Brown University faculty commit category error

More than 260 faculty and staff at Brown University signed an open letter to President Christina Paxson urging the university not to pursue criminal or student-conduct charges against a group of students arrest for staging a sit-in at a campus building.

 The letter attempts to play "gotcha" with Paxson. They cite her statement to faculty about ensuring "that individual members of the community are free to voice their views, including using their voices to urge lawmakers or other universities to take specific actions or, more generally, express their beliefs on matters of conscience." And they cite her NYT op-ed decrying past instances of state censorship ship of everyone from Galileo to Darwin to communist professors and how those censors were on the "wrong side of history." It follows, the letter argues, that the sit-in enjoys the same constitutional protection, because "freedom of expression is not restricted to speech but includes the right to protest and to perform civil disobedience." The students "undertook a peaceful act of civil disobedience, following a time-honored American tradition."

Whatever the merits of the request, the authors commit a category error in conflating civil disobedience with protected speech and protest. Civil disobedience (including "peaceful acts of civil disobedience") does not enjoy First Amendment protection from sanction. Those who engage in civil disobedience do so to either protest and challenge unjust laws (e.g., lunch counter sit-ins) or to call attention to some other cause through disobedience (e.g., the letter's list of policy changes, such as South Africa divestment, that Brown has enacted in the wake of past sit-ins). The disobedience at issue here falls into the second category. But those who engage in that second category violate valid laws (e.g., a prohibition on occupying the university president's office) with the goal of drawing attention to their cause. They violate that law knowing--and believing it worthwhile--to face punishment and sanction in the name of a larger cause. We may regard that as noble or worthwhile, but it does not confer immunity from neutral, otherwise-valid regulations. And the school enforcing its rules about use of the office does not conflict with Paxson's stated support for free speech, including speech by those with marginal or unpopular views. These students enjoy many ways to advocate for a ceasefire, most of which would not--at a school, such as Brown, voluntarily binding itself to the First Amendment--run afoul of school rules or subject them to arrest or sanction.

We could, generously, read the letter as making a prudential point--the school should refrain from sanctioning them because of their motivations and because of Brown's long history of successful sit-ins and occupations. But that argument does not require the broader efforts to tie this to genuinely protected speech.

Posted by Howard Wasserman on November 27, 2023 at 03:22 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Once Again, the AAUP Ignores Antisemitism

My new essay in The Hill explains how a recent statement from the American Association of University Professors discounts antisemitism on U.S. campuses.

Here is the gist (I did not write the headline):

Hypocritical definitions of ‘academic freedom’ empower extremists 

by Steven Lubet, opinion contributor - 11/27/23

The American Association of University Professors (AAUP) quite rightly calls itself the “most prominent guardian of academic freedom” for faculty and students in the U.S. In a recent statement on the Israel-Hamas war, however, titled “Polarizing Times Demand Robust Academic Freedom” the AAUP displayed a distressing anti-Israel bias that sadly undermines its commitment to even-handed protection of free expression. 

The AAUP, however, addresses only one rhetorical excess, even though it is almost entirely non-existent, declaring that it “rejects the characterization of pro-Palestinian speech or critiques of the Israeli state as invariably antisemitic.” That is a classic straw person. Apart from an occasional crank or zealot, nobody has ever charged that pro-Palestinian advocacy or criticism of Israel is “invariably” antisemitic.  

Meanwhile, the AAUP statement says not a word about the threats to the academic freedom of Jewish students, who have been insulted and marginalized on many campuses.

It is deeply objectionable, as the AAUP statement points out, that pro-Palestinian faculty have been “investigated, suspended, or fired.” But the same is true of the Jewish professors who have been suspended — as at Johns Hopkins, Southern California, and NYU — for anti-Hamas statements, and others who have been isolated or threatened, never mentioned by the AAUP. 

You can read the full essay in The Hill.

Posted by Steve Lubet on November 27, 2023 at 12:15 PM | Permalink | Comments (0)

Saturday, November 25, 2023

Saturday Music Post - Drifting Up, On, Under

Among their big hits in the early 1960s, The Drifters charted three songs with prepositions beginning the titles: "Up on the Roof," "On Broadway," and "Under the Boardwalk." The group itself was extremely unstable, with lead and backup singers coming and going at frequent intervals. Both Clyde McPhatter and Ben E. King were Drifters' lead singers before going on to successful solo careers, although neither sang lead on the "prepositional" songs featured in this post. The name for the group was owned by their manager George Treadwell, a former jazz trumpeter and once the husband of Sarah Vaughn. Treadwell cycled over 60 vocalists under The Drifters' name, paying most of them poorly, in a lineage often described as "Treadwell's Drifters." Early members of the group sometimes competed under other names, including "The Original Drifters," led by early member Bill Pinckney, who obtained the rights to the variant name in binding arbitration with Treadwell.

The clips are at The Faculty Lounge.

"Up on the Roof" was written by Gerry Goffin and Carol King and released in 1962 with Rudy Lewis singing lead (Clyde McPhatter and Ben E. King having already left). Goffin, the lyricist, said it was his favorite of all their songs. It reached number 4 on the Hot 100.

"On Broadway" was released in 1963, with Rudy Lewis again singing lead. It completed The Drifters' trifecta of Brill Building songwriters, having been written by Barry Mann and Cynthia Weil, with an assist from Jerry Leiber and Mike Stoller.  The cut featured Phil Spector on guitar, though I don't think he was acknowledged in the line "I can play this here guitar." It reached number 9 on the Hot 100.

"Under the Boardwalk," by Art Resnick and Kenny Young (born Shalom Giskan), was released in 1964 and reached number 4 on the Hot 100. It was originally set to be recorded with Rudy Lewis as the lead singer, but he died the night before the session of a suspected heroin overdose. Rather than reschedule the recording, apparently at the insistence of Treadwell, the group promoted Johnny Moore to lead singer. Moore had joined only a year earlier, but he could really hit the high notes.  I don't know who played guitar, but it wasn't Phil Spector. 

The clips are at The Faculty Lounge.

Posted by Steve Lubet on November 25, 2023 at 05:50 AM | Permalink | Comments (0)

Thursday, November 23, 2023

I Am Thankful for the Great Writing in the New York Times

It is a small thing compared to the importance of news coverage and investigative journalism, but the Times is still capable of wowing me with great writing at the sentence level. I am in awe of the reporters who produce these gems, and the editors who let them do it. Here are a couple that I made note of recently:

In an article by John Leland on the auction of a Chuck Close painting:

At Lot 77062, he started to get antsy. “I’m getting shpilkes,” he said, using the Yiddish word for shpilkes.

In an article in the Magazine by Matt Flegenheimer about Russell Brand's well-deserved unraveling:

With Jesus-length hair, multidenominational tattoos and promises of unspecified revolution, Brand, 48, had in recent years been reaching millions daily across a media and wellness empire, fusing the downward-facing dogmatism of a proper guru with the cold efficiency of the YouTube algorithm. 

Comments are open for other fine examples.

 

Posted by Steve Lubet on November 23, 2023 at 08:17 AM | Permalink | Comments (1)

Wednesday, November 22, 2023

PJ as a chilling tool

I wrote earlier this month about the Tennessee lawsuit against Kathy Griffin and how the many who believed personal jurisdiction was lacking allowed their substantive views to affect their jurisdictional views. It was possible, of course, that forcing a speaker to defend nonsense defamation claims in a distant forum adds to the chilling effect and the goal of silencing speakers.

Thank goodness Elon Musk and Twitter (never X) can illustrate the point with this tortious interference lawsuit in the Northern District of Texas against Media Matters and reporter Eric Hananoki, over an investigation into Twitter allowing ads to run next to antisemitic content, after which several major advertisers withdrew (for the moment) from Twitter.

Twitter is a Nevada corporation with its principal place of business in California. Media Matters is a D.C. not-for-profit with its PPB in D.C. Hananoki is a Maryland citizen. The speech was directed to the world via the MM website and other online and traditional media outlets. The complaint identifies several advertisers who withdrew, none incorporated or having PPB in Texas. The best it can do is that many Twitter users are in Texas and many of the advertisers do business in Texas. Unless they have something else, that will not cut it--there was no "Texasness" to the Media Matters report or to any criticism of Twitter. This is what speech-chilling personal jurisdiction in a speech-chilling BS lawsuit looks like.

Putting a cherry on this as a Civ Pro exam: The Fifth Circuit has held that state anti-SLAPP statutes do not apply in federal court, whereas the Ninth Circuit holds that California's statute does apply in Federal Court.

Posted by Howard Wasserman on November 22, 2023 at 01:17 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, November 21, 2023

Jews and Free Speech

In light of tensions on- and off-campus over rising Jew hatred and Jew-hating speech, I drift back to Skokie. That case marks a watershed for First Amendment protection of hateful speech. And it famously featured Jews on all sides: The speech targeted Jews; two Jews -- ACLU executive direct Ira Glasser and ACLU staff attorney David Goldberger--led the fight to protect that speech; and many Jews and Jewish organizations supported Skokie's efforts to stop the march and took issue with Glasser, Goldberger, and the ACLU.

So I wonder: What, if anything, does Jewish law say about free speech? Is there something Jewish about free-speech maximalism? Or is it the opposite? Curious if anyone has written on this.

Posted by Howard Wasserman on November 21, 2023 at 11:01 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

What is Michael Bloomberg talking about?

Michael Bloomber published an op-ed in Sunday's Wall Street Journal (on the "crisis in higher education" reflected in on-campus speech supporting Hamas and the October 7 massacre in Israel.  He presents the usual laundry list of complaints about past campus-speech issues, then claims--without explanation or logic--that those past issues cause the current campus antisemitism. It is nonsense.

Some commentators really want to argue that pro-Hamas campus speech is beyond the pale and universities should and can restrict it. But people spent a decade opposing--and crying "cancel culture" over--efforts to keep TPUSA and Milo Yiannopoulos off campus on the grounds of the speech being offensive. So we end up with Bloomberg's word salad.

Continue reading "What is Michael Bloomberg talking about?"

Posted by Howard Wasserman on November 21, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Stump the Nominee

Sen. John Kennedy (R-LA) grills a nominee to the U.S. District Court for the Northern District of Oklahoma about issues she might confront on the bench. This time it is Sara Hill, former attorney general of the Cherokee Nation. Unlike several past incidents (one of which led to the withdrawal of the nomination), Ms. Hill does pretty well. She drew a blank on collateral estoppel, which she attributed to nerves, but she mostly nailed Kennedy's other questions, with the exception of an incoherent one about the Eighth Amendment and -- it seems to me, although he didn't say it -- the death penalty.

It is surprising that nominees have not prepared themselves better for Kennedy's predictable questioning. Of course, it is impossible to know which arcana he will focus on that day, but the basics of the Constitution -- What does Article II do? -- shouldn't be a stumper.

 

Posted by Steve Lubet on November 21, 2023 at 04:45 AM | Permalink | Comments (0)

Monday, November 20, 2023

JOTWELL: Campos on Marcus on non-US discovery

The new Courts Law essay comes from Sergio Campos (BC), reviewing Richard Marcus, The Magnetic Pull of American Discovery: Second Thoughts About American Exceptionalism, in Processo Civile E Costituzione (Augusto Chizzini et al., eds., Giuffrè Francis Lefebvre 2023), which argues that discovery outside the United States looks a lot like U.S. discovery, despite assumptions that the U.S. is unique (and crazy).

Posted by Howard Wasserman on November 20, 2023 at 03:08 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

How Might Robert Jackson Look at Section Three?

This thought experiment comes to mind because I'm writing a book on his Youngstown opinion and because I'm involved in the Section Three litigation. The exercise is also worthwhile because Jackson would have been relatively uninterested in the textual and historical arguments that dominates the current discussion. He took a structural or pragmatic approach. So let's look at one Section Three issue from his perspective.

Everyone agrees that Section Three binds President Biden to some extent. That's because he swore an oath to support the Constitution many times as a Senator. Likewise, everyone agrees that all of Donald Trump's predecessors since 1868 were similarly bound. They all served in some elected, appointed, or military office requiring a constitutional oath prior to becoming President. Thus, to say that Section Three does not bind Donald Trump would treat him differently from all other post-1868 presidents. Everyone also agrees that Section Three binds all other officials who engage in insurrection against the Constitution after swearing an oath to support the Constitution. To say that Section Three does not bind Donald Trump would also treat him differently from all other insurrectionist officials.

Robert Jackson might ask: What reason is there that justifies giving Donald Trump special treatment? The answer is none. Now Congress can make an exception for anyone under its Section Three amnesty power. Congress does not need a reason. But courts do. They are not permitted to grant amnesty. 

Posted by Gerard Magliocca on November 20, 2023 at 09:21 AM | Permalink | Comments (0)

Marker Drop

Lubet out:

My final class at Northwestern.

Posted by Steve Lubet on November 20, 2023 at 06:33 AM | Permalink | Comments (13)

Saturday, November 18, 2023

A Missing Word in Youngstown

Now that I'm back working on the book, I want to discuss a modest new discovery that I've made about Justice Jackson's concurrence. It concerns his discussion of the Commander in Chief Clause.

The final version of the opinion says the following:

Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a
state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.

Now look at an earlier version of this passage, to which I've added italics

Nothing is plainer in our Constitution than that the power to declare war is entrusted only to the Congress. Any action which the President has constitutional power to initiate cannot be deemed in law to be a war and, hence is no foundation for a claim to war powers, unless an unconstitutional action brings enlarged constitutional powers. Nothing would seem to me more dangerous than a doctrine that a President can vastly augment his power over the internal affairs of the country by his own unauthorized commitment of this country to some foreign venture. Even though I do not fully understand the Government's "war power" argument based on the Korean enterprise, I do not accept it.

Thus, the earlier draft (from May 22, 1952) takes a stronger view of a war declaration's relevance for interpreting the Commander-in-Chief's powers. There is no qualification that "of course" we could be in a war without a formal declaration. And there is the suggestion that we should judge the President's Article II authority in part based on whether a war declaration exists.

In his May 29th draft, though, Jackson changed the passage to look almost exactly like the final version. With one exception. The word "unauthorized" was still in the paragraph. Indeed, this was still true in his final draft on June 2nd, but in that draft you see that he crossed out the word "unauthorized." It was one of the final edits.

I think this change was significant. An "unauthorized" commitment of troops could be understood as just stating the truism that the commitment was not authorized by Congress. But you could also read "unauthorized" to say that authorization matters and that not having one reduces or circumscribes the President's power in some circumstances.

As I said in a prior post, one unintended consequence of Jackson's opinion was to render war declarations obsolete by making clear that the President possessed broad power to act on his own. His last-minute edit contributed to that result.

Posted by Gerard Magliocca on November 18, 2023 at 09:12 AM | Permalink | Comments (0)

Saturday Music Post - Whisky in the Jar

"Whisky in the Jar" is a traditional Irish song of unknown origin, one of many celebrating bandits and (in this case implicitly) resistance to the British. Folk versions were popularized in the 1960s by the Irish Rovers, in the UK, and the Highwaymen in the U.S. (not the supergroup with Willie Nelson, et al, the folk quartet with Stephen Trott, later of the Ninth Circuit), followed by rock versions from Thin Lizzy and Metallica. I'm not crazy about the latter, but they were obviously very popular leading to many covers. Regrettably, I could only find audio cuts of many of the major Irish bands. Oh well.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on November 18, 2023 at 05:58 AM | Permalink | Comments (0)

Friday, November 17, 2023

Leaving X/Twitter

I just wanted to let people know that I've decided to leave X (or Twitter) after the most recent message from Elon Musk. But I'll still be here blogging.

 

Posted by Gerard Magliocca on November 17, 2023 at 07:18 PM | Permalink | Comments (0)

A standing problem?

The University of Florida chapter of Students for Justice in Palestine, represented by the ACLU, has sued Ron DeSantis, Florida State University System Chancellor Raymond Rodrigues , UF President Ben Sasse, and the UF, and moved for a preliminary injunction. The complaint alleges that Rodrigues, on DeSantis' command, ordered all state universities to deactivate any recognized SJP chapters (USF and UF have chapters). The complaint adds that DeSantis promoted this idea during a recent GOP debate. The complaint does not allege that UF has, at this point, done anything in response to that order.

As structured, this creates a bit of standing (or is it ripeness--who the hell knows) puzzle. Rodrigues' order is not self-enforcing; it does not, of its own force, deactivate UFSJP and thus does not, of its own force, injure UFSJP, meaning Rodrigues does not injure UFSJP. How would an injunction against Rodrigues help UFSJP--perhaps by ordering Rodrigues to withdraw the order? The connection between DeSantis and UFSJP is more remote.

UFSJP's injury arises from UF deactivating it or threatening imminently to deactivate it, something UF has not done or even moved to do. The court could (and probably will) find that the order that chapters "must be deactivated" creates the necessary imminence--the order says UF must do this and UF cannot ignore that command, meaning it will, likely soon, take steps to deactivate. (Much as courts allow plaintiffs to file pre-enforcement challenges before an enacted law's effective date). But, taking the "doctrine" seriously, it is not an easy question. It certainly demonstrates the challenges and necessary precision for plaintiffs in framing these cases.

Posted by Howard Wasserman on November 17, 2023 at 10:48 AM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Can Stanley Fish Be Taken Seriously?

Stanley Fish, who is now teaching at New College in Florida, was interviewed by the Chronicle of Higher Education (paywalled with free registration). Put aside the fact that he is giving some legitimacy to  the DeSantis/Rufo takeover of higher education, and consider this comment about his involvement at Ralston College:

I have a lot more to ask about New College. But first I wanted to ask about Ralston College, in Savannah, Ga., which you’ve been involved with at the planning stage, and which seems to promise a kind of great books or neotraditional education.

It took about a decade of fundraising and planning and gift-giving for the college to begin but it’s now in operation. I was there less than a year ago, giving a lecture and talking to students and faculty members. I gave a talk about hate speech and free speech. And the morning before the talk, I attended a class on Homer, the Iliad. What was amazing about it was that not only was the Iliad being read in the original Greek, but the conversations between the students and the faculty member were being conducted in Greek. And six months before this course began, no student in it — and there were about 25 — had any knowledge whatsoever of the Greek language or Greek culture.

It is simply not plausible that 25 students could become fluent in Greek in just six months. Maybe a few savants could learn a language that well in a short time, in a total immersion program – including reading it in a different alphabet – but it more than strains credulity to think that 25 such marvels would all be at Ralston College at the same time.  (Oh, and by the way, Ralston College is unaccredited, although it is authorized to grant degrees by South Carolina.)

The interviewer thought so too:

It seems almost impossible.

Not that I was able to participate! I wish I could. I took a little Greek 110 years ago and have long since forgotten it, but it was inspiring. These people were thoroughly engaged.

I took Greek as an undergrad. It took me three years to be able to laboriously translate, with a crib, over the course of an hour, maybe a page of Homer. I was by no means the world’s best Greek student. But there were other students with more talent in the class — at least one of them went on to become a professor of classics — but none of them could have conducted a discussion in Greek about the Iliad.

Yes, that’s right. And the discussion was very precise about details of the verse and how it worked, and how various words interacted with one another or were opposed to one another.

This does not seem to be a parody:

How did you know, if it was in Greek?

Oh, I could tell that much. There’s a certain kind of gesturing with respect to texts that is known to any of us who have worked with texts for a while.

Yes, the great Stanley Fish claims that he can deduce the content of a classroom discussion -- in a language he does not understand -- based on hand signals, which he says are "known" among academics. 

Somebody is kidding somebody, but who? Could it be Morris Zapp?

Comments are open.

 

Posted by Steve Lubet on November 17, 2023 at 08:32 AM | Permalink | Comments (3)

Thursday, November 16, 2023

Kavanaugh and Barrett on universality

SCOTUS refused to stay an injunction prohibiting enforcement of Florida's anti-drag law; Justices Thomas, Alito, and Gorsuch dissent.

Justice Kavanaugh, for himself and Justice Barrett (mostly) issued a statement respecting denial of the stay. It says in relevant part:

Rather, for purposes of its stay application, Florida challenges only the scope of relief ordered by the District Court—namely, that the injunction prohibits state enforcement of the law not only against Hamburger Mary’s but also against other entities that are non-parties to this litigation. To be clear, if this Court, for example, were ultimately to affirm the District Court’s First Amendment judgment on the merits, the State could not successfully enforce this law against anyone, party or not, in light of stare decisis. But district court judgments do not have that stare decisis effect. And the State here contends that the District Court otherwise lacked authority to enjoin the State from enforcing the law against entities other than Hamburger Mary’s. Therefore, the State says that it should be able to enforce the law against those non-parties during the pendency of its appeal.

No federal statute expressly grants district courts the power to enter injunctions prohibiting government enforcement against non-parties in the circumstances presented in this case. The question of whether a district court, after holding that a law violates the Constitution, may nonetheless enjoin the government from enforcing that law against non-parties to the litigation is an important question that could warrant our review in the future. But the issue arises here in the context of a First Amendment overbreadth challenge, which presents its own doctrinal complexities about the scope of relief.

I argued that the district court messed up the scope-of-injunction analysis. In particular, this was not a proper case for overbreadth, which Kavanaugh sees as the reason this case does not present the proper vehicle. Nevertheless, credit for recognizing that stare decisis provides the prospective non-party effect of this decision, whether binding or persuasive.

The opinion adds a footnote, which Barrett does not join, distinguishing enjoining enforcement of statutes and setting aside agency regs under the APA.

Posted by Howard Wasserman on November 16, 2023 at 10:37 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, November 15, 2023

More campus speech

Three private universities--Brandeis, Columbia, George Washington--have suspended campus chapters of Students for Justice in Palestine and/or Jewish Voices for Peace. Columbia and GW said the groups violated university policies--holding events or rallies without notice or permission or following procedures (Columbia) and for projecting images onto campus buildings. Press reports (or the universities) have been unclear as to whether they also acted against offensive messages in those unauthorized rallies or light projections. Assuming the universities bind themselves to free speech and academic freedom principles (as I imagine all, as prestige universities, do), that makes a difference as to whether they acted consistent with those principles. Universities can ban groups for not getting permits or for misusing buildings as a projection screen; they cannot ban groups when the problem is the content and viewpoint expressed. Relatedly, to the extent they acted to enforce these neutral policies, the decision must be consistent with past enforcement of those policies against other groups. Is a 90-day suspension the usual sanction for improper projection--or did GW act more harshly against SJP because it disagreed with its messages or viewpoint.

Two other new writing on this. The Academic Freedom Alliance yesterday issued a statement on campus protests, identifying principles that should guide universities in the current environment. Without naming names, AFA hits may point:

Members of the campus community have the right to engage in vigorous political debate and even to articulate extreme political views, but they have no right to try to intimidate or menace other members of the community, violate university policies or state and federal laws, or interfere with the education or lawful activities of other members of the campus community. Any violations of university policies should be expeditiously investigated and university rules protecting the integrity of its mission should be stringently enforced.

Eugene Volokh wrote about the phenomenon of "censorship envy"--a group demands censorship of offensive speech by pointing to past censorship of speech offensive to some other group. As Eugene describes it, the reaction is "[i]f my neighbor gets to ban speech he reviles, why shouldn't I get to do the same?" This principle captures the controversy over failure by universities and DEI offices to prohibit or even criticize some anti-Israel/antisemitic speech, in light of how universities and DEI offices have responded to other hateful or offensive speech in recent years.

Posted by Howard Wasserman on November 15, 2023 at 04:38 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Republican judges in the South during Reconstruction.

In light of Gerard's suggestion, I recommend Fergus Bordewich's recently released Klan War: Ulysses S. Grant and the Battle to Save Reconstruction. Most law professors are no doubt aware of the general outline of the situation in the South, but Bordwich details the astonishing level of violence against African Americans and white Republicans, including many judges, during reconstruction, and Grant's attempts to intervene. There is much in it that I did not know or poorly understood.

 

Posted by Steve Lubet on November 15, 2023 at 03:52 PM | Permalink | Comments (2)

Book Project Idea For Anyone Who's Willing

Through my Section 3 research, I've concluded that there is an interesting story for someone to tell about Republican judges in the South during Reconstruction. The federal judges that enforced desegregation there in the 1950s are well-known. But hardly anyone knows their counterparts who tried and failed to enforce the Fourteenth Amendment in the 1860s and 1870s.  For example, there were rulings striking down state laws banning interracial marriage as unconstitutional, declaring racial segregation illegal, and strongly enforcing the Ku Klux Klan Act. In response, these judges were threatened, accused of corruption, or worse.

Who were the judges? Two of them were John Underwood of Virginia and Richard Busteed of Alabama (who survived an assassination attempt in 1867). I'll mention some other names in a future post.  

Posted by Gerard Magliocca on November 15, 2023 at 08:55 AM | Permalink | Comments (0)

Dr. Glaucomflecken on Memorization

Why are so many law school exams (and the bar exam) still closed book?

 

Posted by Steve Lubet on November 15, 2023 at 04:16 AM | Permalink | Comments (6)

Tuesday, November 14, 2023

Youngstown and Declarations of War

The United States has not formally declared war since 1942. We've issued some functional war declarations against Iraq and Al Qaeda. There have been other military actions that arguably did not require a formal declaration. But there have been major wars (think Korea and Vietnam) that in an earlier era probably would have triggered war declarations. Why have none occurred since WWII?

One answer is that Youngstown gave President Truman a pass on that issue. The Court could have said that he lacked the power to seize the steel mills on military necessity grounds because no declaration of war was issued. The Solicitor General was asked about this at oral argument, and Justice Jackson flirted with this argument in a draft of his concurrence. In the end, though, Jackson said that he did not need to address that issue to reach his judgment that Truman's action was unlawful.

Perhaps this was a mistake. The OLC most often cites Jackson's concurring opinion for the proposition that the President has broad latitude to use troops abroad even in the absence of a war declaration. Given that statement, why should Presidents bother to seek a declaration? And none have. Truman's reasoning was that seeking a formal declaration of war for Korea would weaken the nuclear deterrent. That was a hard argument to resist in 1952, but experience suggests that the price was too high.

Posted by Gerard Magliocca on November 14, 2023 at 06:53 PM | Permalink | Comments (0)

The 2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) will be co-hosted by the University of San Diego School of Law and California Western School of Law

Posted by Orly Lobel on November 14, 2023 at 06:01 PM | Permalink | Comments (0)

SCOTUS Has a Code of Conduct

I have a new essay on Slate about the Supreme Court’s first-ever Code of Conduct. I did not write the mordant headline, which is a bit more aggressive than the article itself, but there are indeed holes in the code.

Here is the gist:

You Could Drive an RV Through the Holes in the Supreme Court’s New Ethics Rules

BY STEVEN LUBET

NOV 14, 2023

The now official Code of Conduct for Supreme Court Justices of the United States is a “good idea,” as Justice Amy Coney Barrett put it a couple of weeks ago, when she knew that it would soon be released but avoided tipping her hand. Critics have rightly pointed out that the code lacks any enforcement mechanism, meaning that ethical compliance will continue to be determined only by the justices themselves—a task at which several of them have been notably lax in the past.

On the other hand, I have argued since 2005 that one important role of a Supreme Court code would be to let “citizens know what they can expect” of the justices. Unfortunately, it turns out that the justices do not expect very much of themselves.

Read together, the code and commentary provide only that the justices will recuse themselves if they feel like it.

Given that the code had evidently been in the works for years—Justice Elena Kagan told a Senate committee in 2019 that it was already being studied—the eventual product is both welcome and frustrating. On the plus side, the Supreme Court finally acceded to public pressure and ended its 50-year run as the only court in the U.S. without written ethics rules. Regrettably, and perhaps predictably, the justices nonetheless passed up the opportunity to reform their deeply unsatisfactory recusal practices, and if anything made them worse.

You can read the entire column on Slate.

Posted by Steve Lubet on November 14, 2023 at 01:58 PM | Permalink | Comments (1)

Monday, November 13, 2023

The War of Words over Gaza

My new essay on The Hill explains how distortions of language have been used to discredit Israel in its war against Hamas. Here is the gist, with a graf of particular journalistic (and in my case, quite local) interest.

Here is the gist (I did not write the headline):

The war of words over Gaza makes the entire world less safe 

The war between Israel and Hamas will be decided on the tragically blood-soaked ground of Gaza. In the meantime, there has been an ongoing war of words in the U. S., in which distortions of language, from simple to profound, have been manipulated to discredit Israel. 

The award for feckless journalism, however, probably goes to the Chicago Tribune. In a story on the release of two of Hamas’s 240 hostages — a mother and teenage daughter from Evanston, Illinois — the Tribune wrote that they had been taken hostage “by Hamas operatives.” 

If Israelis and Palestinians are ever to have the peace and security that both desperately need and deserve, it will only come through mutual recognition and understanding. A good way to begin, or at least envision, the challenging negotiations ahead would be to use more honest language. 

The Palestinians have been dispossessed and brutalized for far too long, but Hamas is a terrorist organization, Israelis are not colonialists and there has been no genocide. 

The entire piece is at The Hill.

Posted by Steve Lubet on November 13, 2023 at 10:00 AM | Permalink | Comments (0)

The 1861 Joint Session of Congress

One way to study constitutional crises is to a look at a crisis that was averted. One example was the 1861 Joint Session of Congress that counted the electoral votes for Lincoln. By then, Lincoln was the President-Elect and some states had seceded.  If you look at newspapers, recollections, and diaries from February 1861, you see three pressing concerns about that Joint Session.

First, what if southerners stole the electoral votes? Literally. The Twelfth Amendment says that the ballots must be opened and counted in the Joint Session. What if the ballots themselves were stolen, lost, or destroyed? Would that mean that Lincoln could not be President? To address this concern, the ballots were given extra security. They were not stolen or destroyed.

Second, suppose the Vice President boycotted the Joint Session? Vice-President Breckenridge ran for President in 1860 as the Southern candidate and lost. He would later join the Confederacy. Suppose he refused to certify Lincoln's election. Would that prevent a transition of power? There were precedents for holding the Joint Session when the Vice-Presidency was vacant (in 1845 and 1853.) Would the same apply, though, if the Vice President was in office but did not show up? But Breckenridge did attend and preside over the Joint Session.

Third, what if a mob attacked the Capitol to stop the proceedings? General Winfield Scott addressed that fear by having troops and artillery stationed around and nearby. There were also security sweeps to make sure that no bombs were hidden in the Capitol. While there was an angry crowd protesting outside, they did not enter the Capitol. And Lincoln's election was confirmed.

Charles Francis Adams, in his diary that day, said: "In truth the Constitution is in many parts a very weak 1instrument, and it owes its success more to the absence of trials than to its innate vigour." 

Posted by Gerard Magliocca on November 13, 2023 at 08:21 AM | Permalink | Comments (0)

On Wasserman on Sorkin on Free Speech

I agree with Howard's observation about the paean to free speech at the end of Aaron Sorkin's The American President: 

Admittedly, still kind of insufferably over-the-top. But it contains the kernel of the right idea for Jewish students encountering discomforting, oppressive, offensive speech.

But why stop there?  Every campus has a DEI program that seeks to reduce (and sometimes penalize) discomforting, oppressive, offensive speech, often excluding Jewish students -- de facto, and sometimes even explicitly -- from those under its protection.

One of the DEI verities is the impact matters more than intent, again often excluding Jewish students from the potentially impacted groups.

Consider for example the Hamas slogan "From the river to the sea." Israeli and Jewish students quite reasonably regard this as calling for the destruction of Israel, which would result in many Jewish deaths. Many of those who chant "From the river to the sea" on campus mean just that, but others claim that the slogan merely calls for freedom and equal rights in Israel and occupied Palestine.

Maybe so, but why does the presumably non-violent intent matter more than the threatening impact?

I don't think that slogan, or any other, should be banned or penalized. But why haven't DEI offices spoken up about the hostile environment it creates for Jewish and Israeli students?

 

Posted by Steve Lubet on November 13, 2023 at 06:43 AM | Permalink | Comments (0)

Sunday, November 12, 2023

Sorkin on free speech

I have written about my change of heart regarding Aaron Sorkin--loved The American President, Sports Night, and West Wing at the time, now find everything about his work (including the earlier work on rewatch) insufferable and repetitive.

But in thinking about stuff happening on campus and the positions of many in the Jewish community on and off campus, this speech from American President sprung to mind: (this is from the president's press conference near the end, responding to GOP criticisms (in-story and real-at-the moment) of the President being a member of the ACLU and opposing flag-burning bans:

America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.” You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms.

Admittedly, still kind of insufferably over-the-top. But it contains the kernel of the right idea for Jewish students encountering discomforting, oppressive, offensive speech. Video after the jump.

Continue reading "Sorkin on free speech"

Posted by Howard Wasserman on November 12, 2023 at 05:00 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, November 11, 2023

Apropos of Nothing & By Way of Escapism: Cunk on Earth

If you aren't familiar with the new Netflix mockumentary -and you need some brief escapes from reality these days (that's all of us) - and you love dry British humor - I bet you will enjoy Cunk on Earth. Diane Morgan is brilliant in her deadpan delivery and she interviews a dozen plus Oxford, Cambridge and other distinguished professors just to ask them about why Michelangelo's David doesn't have an "Arsehole" and what is the meaning of Abraham Lincoln's ab tattoos...She even concludes with some muses on AI and human-machine future. 

 

Posted by Orly Lobel on November 11, 2023 at 02:49 PM | Permalink | Comments (5)

Saturday Music Post - One Offs, Part Three

I considered using these songs for Saturday posts, but I couldn't find enough interesting covers, so here is the third compilation of random one-offs. I'm not saying there are no other versions, just not enough for an entire post. Part One is here, Part Two is here.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on November 11, 2023 at 05:39 AM | Permalink | Comments (0)

Friday, November 10, 2023

Bad Times at Evanston High

Per the website Evanston Now:

Yariv, the parent of an Evanston Township High School student, says she was angered and hurt to learn that two high school employees, a teacher and another worker, wore “Free Palestine” t-shirts to school last month.

Multiple sources have confirmed to Evanston Now that the two staffers worn the T-shirts to school on a day following the Hamas attacks in Israel that killed 1,400 people and left nearly 240 held hostage.

Note that the teacher wore the “Free Palestine” t-shirt on the day after the worst massacre of Jews since the Holocaust, and thus seemingly endorsed it.  Every DEI program I’ve seen has emphasized that “impact” is more important than “intent,” and the impact in this case was predictable (and probably intended). Why wear that t-shirt on that day, if not to indicate approval of the Hamas murders?

And it gets worse. The ETHS administration has refused to disclose whether the teacher has been disciplined, saying only that there had been a “reminder” of the policy on “professional conduct expectations.”

Teachers are authority figures and students are a captive audience. The person who abused their position should be at least suspended following a public apology to their students.

The entire article is here (paywalled with free registration).

 

 

Posted by Steve Lubet on November 10, 2023 at 08:26 AM | Permalink | Comments (0)

Thursday, November 09, 2023

With great speech comes great responsibility

Interesting statement from University of Chicago President Paul Alivisatos on an important consequence of the Chicago Principles of campus expression:

The Chicago Principles protect the voice of each and every member of our community, inviting all to listen and to engage in a collective dialogue. The sum of this dialogue, noisy and fraught though it may sometimes be, is a kind of gift that we offer to each other through our considered participation. I write to remind you that the inheritance of our university’s environment of free expression comes with serious responsibilities.

He concludes "Our environment of free expression is a gift, and I urge each of you to honor and utilize our gifts responsibly so that we may all deepen our understanding." I think the statement is consistent with Paul's conclusions.

Posted by Howard Wasserman on November 9, 2023 at 09:54 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (2)

President Biden's AI Exec Order

Last week President Biden issued a long awaited long and comprehensive Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The exec order continues what I have argued is a too narrow focus on AI as risk, an approach that has been prominent in Biden's AI Bill of Rights Blueprint issued last year. Focusing on risk mitigation, it misses an opportunity of taking a more proactive approach of harnessing the power of AI for good.

Still, the new executive order offers a more promising path to a much needed balanced policymaking about AI and automation. The focus on standards can go a long way in helping private and public actor alike have more informed and rational conversations that differentiate between better, safer applications and snake oil. Standards are needed for the design, deployment, scaling and procurement of Equality Machines and harnessing AI for pro-social uses. The order also requires that all federal agencies designate a Chief AI Officer and to develop guidance for federal agencies’ use and procurement of AI and speeding up the government’s hiring of workers skilled in the field. Other important aspects of the order include the need for market competition, international cooperation, and reacting to the effects of AI on the labor market.

 

Posted by Orly Lobel on November 9, 2023 at 04:54 PM | Permalink | Comments (0)

Sneaking in Early...

...to get ahead of my esteemed co-blogger on this front-page (or should that be front-site?) New York Times story on free speech on campus in the current environment, headlined, "After Antisemitic Attacks, Colleges Debate What Kind of Speech is Out of Bounds." Since journalism is only a first rough draft of history, and in many cases even good newspapers no longer aspire to that, it's shooting fish in a barrel to criticize any individual story. But I would like to point out some obvious gaps and missed opportunities in this one. 

First, and with the customary acknowledgment that reporters are not ultimately responsible for the headline--although the newspaper is responsible for putting the right headline on the right story--there's not much of a showing in the piece of colleges debating what kind of speech is out of bounds. Most of it is about students and non-students debating the question; very little is said about faculty or administrators debating the question, other than arguments about what statements to issue, the usual tedious exchange of faculty "letters" and "open statements," and the note that universities have established the inevitable committees to address anti-Semitism on campus.

That's especially unfortunate since the story omits one of the more salient recent examples of universities acting: Brandeis University banning the campus chapter of Students for Justice in Palestine. Brandeis, it should be said, is a private university. More than that, it has not formally pledged to treat itself as if governed by the same First Amendment rules that would govern a public university. But is has committed itself to "encourag[ing] the airing of the widest range of political and scholarly opinions and to prevent attempts to shut down conversations, no matter what their topic." My own reading of Brandeis's statement of principles on free speech is that none of the caveats it draws cover its reasons for banning the SJP chapter. Its statement of principles says speech that is "directly incompatible with the functioning of the university" may be restricted. The university statement banning SJP relies on superficially similar words with crucial differences: it says that the chapter's advocacy "goes against the values of Brandeis University." Incompatibility with values is not incompatibility with functioning. More specifically, even direct incompatibility with institutional values is not the same as direct incompatibility with institutional functioning--especially at a university, where arguing about institutional values is one of the key ways in which a university functions. But I come neither to praise nor to bury Brandeis's decision. I simply wish to point out that given the headline, this was an obvious news item to include in the story. 

Second, a key part of the story's framing is that the debate "is inflamed by a generational divide surfacing on campuses." What divide? The divide over whether voters approve or disapprove of Israel's actions in Gaza following Hamas's terrorist acts on October 7. Does it fail to include any other relevant generational divides surfacing on campus? Why, yes: changing views, which have been emerging and increasing for several years, over the scope of free speech on campus and elsewhere, and which are increasingly supportive of shouting down speakers, banning hateful speech or speech that offends minorities, and so on. Surely, to quote eminent activists, that is an important part of "historically contextualizing" the debate covered in the story. (Perhaps it doesn't get there because the only academic it quotes in the story is "a historian who studies and supports student activism," rather than one who just studies it.) 

What the story might do with that piece of the puzzle could vary, of course. But it would be relevant to at several other aspects of the story which are more or less omitted. The first, which I think is hinted at but not directly addressed in the piece, is the status of Jews as a religious or ethnic group: where they fit in the picture of "marginalized" or "minority" or "oppressed" groups for whose ostensible benefit contemporary students are more willing to restrict speech. If your picture of how, or how much, free speech applies varies based on such categories, then that status matters. (It does not matter to civil libertarians and used to not matter to the ACLU.) The second is the question of what sorts of "harms" count as relevant for free speech purposes: Clear and direct? Purely dignitary? Harms to safety and well-being, or harms to the feeling or perception of safety and well-being? And related to this is how clear the speech must be in endangering whatever is to be protected. Are "dog whistles"--a term that is almost as capacious as "harm" itself--enough?

I should think that all of these questions would affect the issues addressed in the Times story. In particular, they would help illuminate one of the central issues, and divisions of opinion, in the piece: the question of which speech is anti-Israeli, which is anti-Zionist, and which is anti-Semitic. The broader your conception of what counts as harmful speech, both in terms of how explicit the speech needs to be and in terms of what counts as harm, the more of this speech would count as anti-Semitic, if you were applying the kinds of tools and metrics that have been increasingly common on campus and increasingly popular with students. If you are inclined to be stricter in your definition of harm, and stricter in your evaluation of when speech is directly versus indirectly offensive, then you would take greater care to separate anti-Semitic speech (which might still be protected, albeit subject to strong condemnation) from much anti-Zionist speech and even more anti-Israeli speech. (To be clear, while these distinctions suggest that not all the speech complained about these days is anti-Semitic, it's not like one has to look hard these days for speech that is clearly, vilely anti-Semitic, on or off campus. It's certainly there and not exactly hiding.)  

Where one would go from there is up to the reader. One path, of course, is the "hypocrisy" route. I find it valid but uninteresting, and certainly unhelpful in suggesting useful and principled responses going forward; only short-term strategic responses. But it is one possible avenue of discussion. 

My own inclination in responding to the story would be to suggest something like the following: 1) If universities face embarrassment and difficulty at the moment, they are reaping what they have sown over the past decade as they have embraced expanded definitions of harm and safety, shown timidity in responding to any number of free speech issues, and whole-heartedly cooperated with a vision of students as vulnerable, juvenile, and familial in their relationship to the university instead of one of students as responsible, and thus potentially culpable, adults who are one constituency in a community devoted to vibrant and potentially upsetting discourse. 2) As the "over the past decade" suggests, one can hardly treat the current moment as one that appeared out of nowhere. It, like, totally didn't. 3) In examining the debate and their own obligations, universities that purport to be devoted to free speech should take care not to conflate the different categories of hostility listed above--to Israel, to Zionism, and to Jews. Even if all three categories might be protected in the abstract, it would certainly help lend clarity to their responses and to the discussions of others. 4) Even so, they would probably be still better off focusing less on the content and more on the conduct. Threatening or assaulting a student, ripping down her leaflet, preventing her from speaking, or occupying a campus building that she has an equal right to enter and use violate basic campus disciplinary rules, which are preconditions for a useful, uninhibited, robust, and wide-open free speech environment, regardless of whether the poster is being ripped down because the vandal is anti-Zionist, opposed only to Israel's current actions, or a Jew-hater. (It is easy to misread "uninhibited" and "wide-open" as suggesting a world of public discourse without rules of order. They mean no such thing.) 5) Once they have focused on what constitutes misconduct, they should actually grow a spine and discipline students who violate those rules. Of course they should do it even-handedly and fairly, but they should do it, and should not pretend that they're utterly defeated by a gauzy face mask. Nor should they be cowed by the possibility of student anger in response. Nor should they worry that if a student is identified--by the university--as engaging in misconduct, and penalized--by the university--for that misconduct, that student might find it harder to work for McKinsey or the Third Circuit. That falls under the category of "tough luck," even for those of us who worry about the larger speech dynamic and about public pressure to identify and penalize individual actors. (That any and all of this is referred to as "doxing" suggests how vapid that term is.) 6) Universities that maintain and actually enforce the kind of disciplinary structure needed to facilitate an environment of active, pluralistic speech, regardless of whether the misconduct is carried out in service of "good" or "bad" views, will find that more speech is possible and can actually be heard. Those that duck their disciplinary responsibilities, for whatever reason, will find themselves in a continuing mess. At best, they will find themselves having to parse what counts as "good" or "bad" speech, which they will do badly and under pressure. At worst, they will find that there continues to be more "bad" speech, less "good" speech, and possibly, even probably, less speech altogether. 

That's just my take. Other conclusions could be drawn from a better story. But it ought to have been better. The failure to include some of these obvious items rendered it less successful in fulfilling the mission of a modern newspaper: to facilitate largely pointless debate on social media.    

Posted by Paul Horwitz on November 9, 2023 at 09:53 AM in Paul Horwitz | Permalink | Comments (0)

Kristallnacht

From Walter Effross's blog, Keeping Your Own Counsel:

During a twenty-four hour period that began on the evening of November 9, 1938, Nazi storm troopers and German townspeople burned down “more than a thousand synagogues,” and looted and desecrated many others; vandalized and pillaged “[t]ens of thousands of Jewish shops and homes”; murdered an estimated ninety-one Jewish people; and arrested and sent to concentration camps “more than 30,000 Jewish men between the ages of sixteen and sixty.

The entire post, which discusses the role of law and lawyers, is here.

Posted by Steve Lubet on November 9, 2023 at 09:48 AM | Permalink | Comments (0)

Wednesday, November 08, 2023

Youngstown and Douglas MacArthur

Happily, I am back working on my Youngstown book. Specifically, I am working on the chapter about Justice Jackson's discussion of the Commander-in-Chief Clause. In this post, I want to highlight a connection between the concurrence and President Truman's dismissal of Douglas MacArthur, which occurred one year before the steel seizure.

In his opinion, Jackson emphasized the importance of distinguishing between the President's civil and military role. For example, he said that "the Constitution did not contemplate that the title Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries and its inhabitants." Later he added "[t]hat military powers of the Commander-in-Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history." Finally, "[t]he purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office."

This final statement was not made in a vacuum. The most famous example of civilian control of the military was Truman's decision to fire General MacArthur over strategic disagreements in the same Korean War that was at issue in Youngstown. MacArthur's removal was not a case but was an important precedent reaffirming civilian control over even the most popular military commanders. In a sense, Jackson's discussion was the other side of the coin. The proper balance between civil and military power ran both ways.   

Posted by Gerard Magliocca on November 8, 2023 at 08:10 PM | Permalink | Comments (0)

Monday, November 06, 2023

The remedy to be applied . . .

Irony can be pretty ironic.

Posted by Howard Wasserman on November 6, 2023 at 06:36 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

More Justice for Dan

We have explained before our reasons for posting rarely about the criminal investigations and trials in the aftermath of our dear friend and colleague Dan Markel's murder: We want very much to celebrate and put the focus on his life, and not on his death alone. 

Despite that, we want to mark this important moment: the conviction of Charlie Adelson in Dan's senseless killing. It is one more step forward in providing a measure of justice for Dan, for his children, for his family and friends, his students, and so many others whose life he touched in his time with us. That justice does not assuage our sense of loss and grief. But it is good and right that justice be done. We're grateful to the prosecution for its years of hard work, and hope and trust that it will not rest until everyone involved in his murder has been brought to account for it. 

Posted by Paul Horwitz on November 6, 2023 at 05:31 PM | Permalink | Comments (0)

An Addendum to Howard's Post

I seem always to post when I want to disagree with Howard. I'm not sure this post quite falls into that category, and I should add that if Howard provokes me to write, that is to his credit. One reason I have not written about every recent incident is that I think my last two posts fairly represented my views and were fairly generally applicable, and I don't want to repeat myself unduly. As I wrote previously, I worry about the current speech dynamic, for views unrelated to the viewpoints on offer. I make no absolute claims about what prospective employers are or should be allowed to do, not least because as an employer I might make similar decisions. But I do think a generalized atmosphere in which a combination of public pressure and social-media leveraging are used repeatedly to encourage risk-averse institutions to fire, penalize, or reject people for even objectionable speech that would ordinarily be treated as none of those institutions' business is deeply unhealthy. And I don't think the invocation of McCarthyism is wrong or premature. McCarthyism, too, was largely a private enterprise, and relied substantially on employers' (including universities) aversion to bad publicity. That said, a couple of additional notes are in order. (I don't address the hypocrisy point 

Although I am not a fan of Mr, Ackman's actions, I think there is a more charitable reading available of the fourth recommendation in his letter. He writes:

Fourth, the University should publicly reach out to students in an effort to obtain other examples of antisemitic acts that should also be carefully investigated, and for which appropriate disciplinary steps should be taken. Because Harvard students are notoriously focused on their job and career prospects post-graduation, disciplinary actions by the administration for failure to meet the University’s standards for appropriate conduct that become part of a student’s permanent record should serve as an effective deterrent to overt antisemitic acts on campus. No law firm, corporation or graduate program will hire or admit an antisemitic or racist student. I note that the recent letter to the deans of law schools around the country signed by many of the top law firms in the U.S. has, I am told, already begun to have an effect in reducing antisemitic acts at the Law School.

Howard describes this as Ackman asking that Harvard "facilitate the process of identifying racist and antisemitic students for future employers or grad schools." That may well be what Ackman wants. And I personally find distasteful the first clause of his sentence, seeking student informers. I suppose it could be said, in tu quoque fashion, that this is just a specific form of encouragement of a "callout culture" or "culture of accountability." But then, and despite the many defenses that were offered for it, I also find callout culture worrisome.

Nevertheless, a charitable reading--or, perhaps, adaptation--of the core part of Ackman's claim is that universities should actually enforce whatever codes of conduct they have, that that should include disciplinary action, and that disciplinary decisions should not be hidden under a permanent veil. That, or at least some version of that recommendation, is not unreasonable. Students who openly violate university disciplinary rules should be, you know, subject to discipline. In particular, students who deliberately violate university rules that are part of that institution's infrastructure of free speech in a shared environment--say, by tearing down leaflets they disagree with, or attempting to prevent invited speakers from entering the room where they are scheduled to speak, or preventing them from being heard for the length of a speech, or pelting them with eggs or flour or other ingredients, or occupying university spaces improperly and preventing their use by others, or engaging in vandalism or property destruction--ought actually to be disciplined, at least in any university that cares about the exchange of ideas and that honors its own values. Universities should be fair and even-handed in applying discipline, but not supine--which they often are, and which emboldens students, professors, and other visitors on campus to entertain the absurd belief that they have a right to violate university policy without consequence. If the basic rules are sound and the conditions of fairness and even-handedness are met, and a student is disciplined for such conduct and as a result faces future employment consequences, it's hard to see that as a problem.

(I would add, since it seems oddly necessary, that even though I disapprove of mass efforts to identify various individuals and broadcast their identity, that does not mean those individuals have some absolute right of privacy, on or off campus. You do not, for instance, have a right to engage in a large public protest on the lawn of a university, a protest whose whole point is to be seen, while forbidding others from photographing you.  Expelling the person photographing you from the lawn so that you can publicly protest in private, including by means that in other circumstances would be called harassment or battery, is not a permissible response and should be met by university discipline. Likewise, you do not have a right to rip down posters in sweet solitude.)

Perhaps this is an overly charitable reading. It's certainly not intended as a blanket defense of any particular person or action, especially in light of my general concerns about the current environment and its effects on a culture of free speech. But it's worth engaging in, to help distinguish between actions that are destructive of that culture, and actions--including disciplinary actions resulting in adverse consequences for students who violate university rules--that are necessary conditions for such a culture, and in which universities have arguably been either timid or failed to be even-handed in recent decades. 

My second caveat has to do with his link to an interesting interview with Professor Genevieve Lakier. There's plenty I agree with there. But, even keeping in mind reasonable differences of opinion over matters of degree, I find it bizarre that Lakier seems to treat these phenomena as a sudden eruption. She draws a historical line that starts with McCarthyism, jumps suddenly to the immediate post-9/11 period, and then disappears again, only to magically reappear precisely at the moment in October 2023 when people began targeting students and others who have engaged in speech criticizing Israel.

A lot happened in that last interval! Civil libertarians and others concerned with free speech culture more broadly have been raising precisely these concerns about speech culture and its intersection with things like Internet mobbing that encouraged employers to cut people loose, publishers to cancel book contracts, and so on for the last ten years. Some of them, who have continued to express their concerns about these issues in the context of anti-Israeli advocacy, even wrote a letter about it in Harper's a while back; you could look it up. Lakier describes this moment as involving an "anxiety about political speech or the extent to which private organizations have participated" in these matters. That is precisely the concern that has been voiced all the while, and the speech that has been the subject of pressure and reprisal over the last decade was indisputably political in any meaningful use of the word. Certainly those advocating for "consequences" during that period saw those issues as political, not simply "cultural," if such a distinction is possible. And publishers, universities, and others who bowed to pressure over the last ten years have acted for exactly the same reasons that have been in evidence lately--some measure of sincerity or a sense of incompatibility with institutional values, and an awful lot of timidity, fear of bad publicity, fear of donor or client anger, fear of one's own workers, students, or other constituents, fear of being thought of as having taken the wrong side on an issue, and so on. During that period, many expressed concern that institutions like businesses--or universities--taking an ever-more-expansive position on what their "values" or "vision" are would have negative consequences for public discourse, as those institutions penalized more-or-less private speech that they could now label as incompatible with those values. Perhaps it is now clearer to more people that there is value in institutions sticking to their core purpose.  

Lakier tells the interviewer that "it just all feels like a repression of speech that we haven’t seen for a while." I share her concerns, but I'm decidedly not sure about the "haven't seen for a while" bit. I share her hope for "pushback" and a "return to normal," by which I take it she means something like the general settlement that usually applied (with countless violations) between around 1960 and 2015, one that we might characterize as believing in and defending a 'mythical' "vision of a neutral First Amendment." But I would note that people have been arguing for this for some time. And the fact that the ACLU has now apparently taken note may be of less comfort to some of us, given the views of some of its staff in the ACLU's Romero incarnation, than it seems to be to her. 

Posted by Paul Horwitz on November 6, 2023 at 04:01 PM in Paul Horwitz | Permalink | Comments (0)

Sunday, November 05, 2023

University hypocrisy on free speech

David Bernstein links to a letter from Bill Ackman (a hedge fund guy I confess to never having heard of, but apparently he is well known) to the Harvard administration detailing his conversations with Jewish Harvard students about the campus atmosphere for Jewish students. Ackman describes the atmosphere as "dire and getting worse, much worse than I had realized." Ackman notes the university's stated commitment to free speech, but responds in two ways. He points to the "legal limitations on free speech" (fighting words and true threats), which simply are not present here, even in the "eliminationist" "river to the sea" message.

And he points to Harvard's past track record on campus free speech (citing, unfortunately, to FIRE's questionable ratings system) and arguing the claim "rings false and hypocritical to the university at large and the Jewish community in particular." Ackman repeats the point that David and I raised--universities did not discover the "right" approach to speech controversies--stay out of public controversies, respect that speech can be ugly and make people uncomfortable--until Jewish students were in the crosshairs.

But I keep coming back to what Ackman (or anyone else) wants Harvard and other universities to do. Ackman makes 7 asks. The second and third involve identifying and sanctioning protesters chanting "Intifada and other eliminationist statements" and students making antisemitic statements or sharing antisemitic imagery in Slack message boards--without regard to many (most?) of these chants and messages being fully constitutionally protected--ugly, but constitutionally protected. While demanding "an environment with true freedom of expression," he seems to want Harvard to treat antisemitic speech the way schools had been treating anti-Black, anti-LGBTQ+, anti-immigrant, anti-abortion speech in prior years.

So if not that, then what? If schools should not continue the same erroneous course, we should be glad that they have seen the light. even under suspicious circumstances and for suspicious motivations--that the same messages directed at any other group would be widely denounced if not silenced). There may be an independent benefit to calling out that inconsistency, either to prompt schools to acknowledge past mistakes and to agree not to return to the old approach when the speech targets other groups. School have not done either, enabling the hypocrisy charge. (David made this point in an email exchange, and I agree).

But Ackman--and others--want more. Ackman's fourth ask is that Harvard facilitate the process of identifying racist and antisemitic students for future employers or grad schools. But this triggers a distinct free-speech debate. On one side is the employer's or (private grad program's) free speech and free association interests--cancel culture as "more speech." On the other is the specter of McCarthyism and black lists that Genevieve Lakier (Chicago) highlights. To have Harvard (which is the "government" in this context) enable those blacklists or to have public grad programs enforce them might strengthen the analogy.

Addition: Michelle Goldberg captures the big picture on this, noting the collision between calls for Jews and Israelis to receive the same protections that other groups have received against "identity-based slights" and the First Amendment rights of Zionism's critics and academic freedom. She speaks with Kenneth Stern, director of Bard College's Center for the Study of Hate and author of a 2020 book (with forward from Nadine Strossen) on how Israel/Palestine has played on campus.

Posted by Howard Wasserman on November 5, 2023 at 11:47 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, November 04, 2023

Substantive frivolousness and jurisdictional frivolousness

The Sixth Circuit held Friday that there is personal jurisdiction in Tennessee in a defamation suit against comedian Kathy Griffin over her tweets about Samuel Johnson, who was recorded harassing a prom-bound LGTBTQ student. The court found jurisdiction on three key facts:Griffin tagged and addressed some tweets to the Board of the Tennessee-based health-care company of which Johnson was CEO, urging that he be fired and and removed from the board (the claim is for tortious interference with employment and IIED); the tweets focused on the Tennessee-based activities of a Tennessee citizen and his continued employment in Tennessee; and she relied on a video of a video of the incident produced in Tennessee. The court distinguished precedent rejecting PJ in a case arising from Griffin's Twitter activities over the Nick Sandmann incident in 2019.

The First Amendment community took an unusually strong stance on the PJ issue in this case. (Griffin spoke about the case, including jurisdiction, on an episode of the Slandertown podcast). But personal jurisdiction seemed obvious in this case. The plaintiffs, and First Amendment commentators, emphasized the Sandmann cases. But the court rightly distinguished precedent, where the relevant events occurred outside Kentucky and the statements about the case went to the world; given the absence of "Kentucky-ness" over the coverage, I doubted Kentucky courts would have jurisdiction before anyone filed suit. Here, on the other hand, the people, events, and consequences of this case were entirely in Tennessee; the only things outside Tennessee were Griffin and many (probably most) of her Twitter followers. The case possessed that "Tennessee-ness" necessary for the effects test.

I wonder if the First Amendment folks conflated substance and procedure. They view the case as frivolous, because Griffin's statements were some combination of true, opinion, and hyperbole that cannot form the basis for defamation or IIED liability or, it should follow, an employment claim. This, they argue, is another example of performative defamation litigation designed to chill Griffin's internet advocacy (Griffin is a target for trolls and others); Johnson sued to shut her up. And making her not only defend, but defend in a distant place, furthers the silencing goal. But substantive frivolousness does not necessarily translate to jurisdictional frivolousness--that the lawsuit is nonsense does not mean the location is independent nonsense. Geographic inconvenience could form a piece of the performative nonsense--see Rudy Giuliani's defamation suit against Joe Biden in New Hampshire. But not always. And not here. Imagining the case had merit (as a court must in determining jurisdiction), this lawsuit is about Tennessee.

Griffin moved in the trial court to dismissed under 12(b)(2) and 12(b)(6), but the district court did not address the latter. She asked the court of appeals to do the 12(b)(6) analysis and dismiss, but the court wanted the trial court to take the first pass at that issue.

Judge Cole concurred. He argued that jurisdiction rests on the tweets tagging or speaking to the company and discussing Johnson's employment; absent those tweets, the case looks different. He might have come out the other way if Griffin's original tweet had described Johnson but not mentioned the company by name or location. That different case would turn on Johnson's conduct and Griffin's role as an LGBTQ+ activist and whether she was passively discussing events on the internet or whether she directed electronic activity into Tennessee with the intent to engage or interact with people or businesses there. I do not know what to think of that. On one hand, courts must recognize the undivided nature of internet communications--it is impossible for one Twitter user to control who views her tweets where, such that any communication is directed everywhere, not to the forum state. On the other hand, the analysis should acknowledge when a speaker in Califonia speakers to the world about an exclusively Tennessee thing.

Cole added this at the end: "Our opinion also does not comment on the veracity of Johnson’s allegations in making our personal jurisdiction determination." True and not disputed. But interesting that he saw need to mention the point and head off any suggestion that finding jurisdiction suggests the suit has any merit. Maybe this is why the First Amendment crowd was so vested in the court finding a lack of jurisdiction.

Posted by Howard Wasserman on November 4, 2023 at 12:34 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Saturday Music Post - Please Don't Talk about Me When I'm Gone

"Please Don't Talk about Me When I'm Gone" was written in 1930 by Sammy Stept and Sidney Clare, the latter of whom was best known for comic songs such as "Good Ship Lollipop" and "Ma, He's Makin' Eyes at Me." It was almost immediately a hit, with multiple popular big band releases in 1931. It has been a staple ever since, with dozens of covers by major artists in many genres. I first heard Billie Holiday's version.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on November 4, 2023 at 12:02 PM | Permalink | Comments (1)

Friday, November 03, 2023

JOTWELL: Kalajdzic on Erichson & Leib on class settlements as contracts

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor) reviewing Howard M. Erichson & Ethan J. Leib, Class Action Settlements as Contracts, 102 N.C. L. Rev. ___ (forthcoming 2023), which argues against understanding class action settlements as contracts.

Posted by Howard Wasserman on November 3, 2023 at 11:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, November 02, 2023

Justice Thomas's Gilded Motorcoach

My new essay in The Washington Monthly unpacks the latest revelations of Justice Thomas’s gifted life, this time it’s about his luxury land yacht. Here is the gist:

When it comes to generating scandals, Justice Thomas is a traditionalist. It’s always the cover-up.

The latest concealment relates to his 1999 purchase of a luxury motorcoach financed by a wealthy benefactor. It was an unusual arrangement that ultimately amounted to a substantial gift, perhaps even taxable income, never disclosed on Thomas’s annual reports. 

There are different ways of characterizing the financial benefit to Thomas—as a gift from a friend, as Welters might put it, or, as the Internal Revenue Service regulations would put it, as taxable income. Either way, it should have been included in Thomas’s 2008 disclosure statement. 

This time, there is no possible excuse. Thomas was obviously aware that he paid less than the full amount of principal and interest on his loan from Welters, as the documentation clearly shows. His attorney insists that “the loan was never forgiven” because “the terms of the agreement were satisfied in full.” That is what lawyers call a distinction without a difference. The changes in the loan terms, no matter how satisfactory to Welters, nonetheless should, by law, have been reported as either income or a gift. 

You can read the entire piece in The Washington Monthly.

Posted by Steve Lubet on November 2, 2023 at 07:57 PM | Permalink | Comments (0)

Mitchell Hamline School of Law Facing Calls Of Antisemitism

here is the article from today - https://tcjewfolk.com/2023/11/02/mitchell-hamline-school-of-law-facing-calls-of-antisemitism/ 

Posted by Orly Lobel on November 2, 2023 at 05:14 PM | Permalink | Comments (0)

Legal scholars are not bound by reality

Following on Paul's recommendation of Noah Chauvin's Against Gap-Filling: I recommend this line towards the end of the piece:

Legal scholars are not bound by reality in the same way as our colleagues in other fields: Whereas they seek to understand and explain phenomena that have happened, are happening, or will happen, and are limited by the facts known or discoverable about these phenomena, our subject matter is the law—something that is (with apologies to adherents of natural law theory) wholly made up by people. Physicists, economists, and art historians must account for the world as they find it. But to the extent a law, legal doctrine, or method of interpretation is imperfect, legal scholars can advocate changing it. Legal scholarship concerns itself not with the world as it is, but the world as it should be.

When I began teaching, there was a line between "theoretical" and "descriptive" scholarship, with the former as "real" and the latter less valuable. But I always believed there is a large class of normative work, while not grounded in deep theory or legal philosophy, digs into and attacks the doctrine. Chauvin describes that.

I also love the first line of that block quote (a colleague said it is his new mantra). My wife is the child of medical academics and has done research in sociology and criminology. When we met (as I was beginning teaching), she laughed at the notion that we seemed to sit at a computer, write whatever we wanted, and get tenure for it.

Posted by Howard Wasserman on November 2, 2023 at 12:12 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The Annual Fall Conference at Notre Dame: "Dust of the Earth: On Persons."

For over 20 years, a highlight of my academic year has been the annual Fall Conference, put on by the DeNicola Center for Ethics and Culture, which is led by my good friend Prof. Carter Snead.  This year's theme is "Dust of Earth:  On Persons."  Here is the full schedule (there's a lot!); the conference starts today.  (Streaming is available!) Plenty of the sessions and talks will be of interest to lawyers and legal scholars, particularly those interested in law-and-technology, bioethics, and the rights of disabled persons. And, (perhaps!) best of all, there's a whole panel on "persons" in the work of Cormac McCarthy! 

Posted by Rick Garnett on November 2, 2023 at 08:25 AM in Rick Garnett | Permalink | Comments (0)

Wednesday, November 01, 2023

More on campus speech

First, Neil Buchanan offers a different take on the limited options (beyond moral suasion) available to universities.

Second, the ACLU joined FIRE in criticizing the ADL's calls for universities to shut down SJP. The letter references the chilling effect from "ideologically motivated efforts to police speech" during the McCarthy Era. The ADL did not take the comparison well--'We are not talking about so-called ideological differences; we are talking about actual threats of violence directed towards Jewish students. Frankly, we would rather the see the ACLU spend its time defending the rights of Jewish students to attend school safely and free from the threat of violence.”' Of course, we are not taking about "actual threats of violence," as the First Amendment understands that concept. And the refusal to recognize that explains the university's bind.

Posted by Howard Wasserman on November 1, 2023 at 06:04 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Chauvin on Gap-Filling

Recommended! As befits a five-page paper, Noah Chauvin's abstract is short: "Legal scholars obsess with filling gaps in the literature. As this essay explains, that is a mistake." (I hope his next piece is on the undue expansion of the length of article abstracts and the reasons for that.)

Chauvin rightly focuses substantially on what I think of as means-of-production or (to use a trendy phrase with no more or less accuracy than characterizes some of its invocations) political-economy or economy-of-prestige reasons for the obsession, noting how much of it has to do with appealing to law review editors and/or gaming the system. One might, in Kerrian or Kerresque fashion, offer two charitable notes in favor of "gap-filling," however. The first is that, for even the academic reader of the published product, there is value in explaining clearly what the article does that has not already been done.

The second, notwithstanding Chauvin's argument that a gap-filling approach "hamstrings true creativity" because it is "reactive" and "inherently limiting," is that law is a technical discipline and a discipline about technicalities. There is thus often a genuine need to answer difficult, unanswered, potentially "small" questions. That's all the more true if, as Chauvin urges, legal scholars let fly with more imaginative or expansive projects, which inevitably will lead any number of real and important gaps to be filled. And the need is compounded by another political-economy phenomenon, which lies somewhere at the intersection of legal academics' desire to be fancily published, their capture by their own politics, and their unconscious tendency or open willingness to shape and distort their scholarship to achieve particular political results. This phenomenon is the tendency to sweep the hard questions or troubling implications created by their own arguments under the rug by describing them as "beyond the scope" (when they are actually within the articles' scope but politically inconvenient) or calling them questions "for another day" (which never seems to come around). Of course, one or both justifications depend on that being the actual reason for the gap-filling article, and on that article actually filling a gap, instead of simply saying it's filling a gap in order to get through the article review process. And anyone who has heard law professors in private settings describing the things they are willing or eager to do strategically to get an article published will find that there is such a thing as too much charity on these points. 

Chauvin notes correctly that there is a "robust tradition" of legal scholarship about legal scholarship. I wonder whether it is quite as robust these days. For one thing, it requires criticizing other scholarship, and both political siloing and the current trend of encouraging the idea of scholarship as a mutually supportive community--which often curdles into mutually supportive back-scratching and self-promotion-by-proxy, especially on social media, and which sometimes arguably lends support at the cost of failing to show the genuine respect that criticism entails--make that less likely. (I think this is one reason book reviews in law journals have become not only more rare but more awful.) For another, such pieces don't place as well, if at all, and, as Chauvin observes, a professionally advantageous placement is the name of the game. They do place in journals like the Journal of Legal Education, or at least used to, but I have seen fewer of those articles in the JLE of late. Finally, articles of this sort are typically short- or medium-length affairs, and--again, at least partly for political economy or economy of prestige reasons--legal academics are writing, and journals are running, fewer of those. Blogs used to help fill that gap, and Prawfs itself certainly has a robust tradition of posts on the subject; we would have run Chauvin's article as a post or series of posts just a few years ago and are happy to host him as a guest any time. Some of my favorite Mark Tushnet posts on Balkinization have been his brief and sharp observations about what he's seeing in the law reviews. But, you know, blogs. They're so 2011.

In any event, we need more of it, and specifically we need more scholarship about the trends and tics that characterize legal scholarship in the current age, which is at least as ambitious as ever without a willingness to say it's ambitious, and which is further untethered from a clear set of agreed-upon scholarly motives or practices.   

 

 

Posted by Paul Horwitz on November 1, 2023 at 11:23 AM in Paul Horwitz | Permalink | Comments (0)

Lowering Expectations or What are universities supposed to do?

Jewish advocates; pro-Israel and Jewish students, alums, donors, faculty and others; the Biden Administration; and others are demanding that university leaders "do something" about the recent wave of campus antisemitism/Judenhass, to "do something" to keep Jewish students safe. A serious question, though: What are universities and university leaders supposed to do?

Begin with several premises:

    1) Jewish students and others have faced a wave of antisemitic speech, speakers, and conduct, to a degree most American Jews have never experienced.

    2) Much  antisemitic speech (as with most hate speech) is constitutionally protected. Horrible and unnerving, but constitutionally protected. It takes a lot for speech to cross the line into harassment, incitement, fighting words, or true threats. Much of what we have seen on campuses the past 24 days does not cross (or even come near) that line. This is partly definitional--people disagree over what speech is or is not antisemitic. That demonstrates one problem with trying to ban "hate speech"--people will never agree on what it is, especially when applied to one's own speech or to those groups one cares about.

    3) Public universities are subject to the First Amendment. Many private universities and colleges (and most selective private institutions) voluntarily--and perhaps as a matter of contract--self-impose the limits reflected in the First Amendment. Almost all universities commit to academic freedom, which means allowing faculty (and perhaps students, depending on one's theory) the full range for in-class, scholarly, and extra-mural speech.

So now what?

Continue reading "Lowering Expectations or What are universities supposed to do?"

Posted by Howard Wasserman on November 1, 2023 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)