Wednesday, December 13, 2023

"Campus Antisemitism Is Making Free Speech Fashionable Again"

Here are some excerpts from an informative article in Psychology Today by Pamela Paresky:

For years, free speech advocates have complained about “safetyism” on campus—shielding students from discomfort at the expense of freedom of expression. Now that the speech is painful to Jews—history’s most convenient scapegoats—university administrators are declaring their commitment to freedom of speech.

What counts as a microaggression? According to the material linked on Harvard’s website, asking an ethnically Asian person “where are you from” communicates “you are not American.” Saying “I believe the most qualified person should get the job” gives the message that “people of color are given extra unfair benefits because of their race.” And a university’s buildings being named for “white, heterosexual upper-class males” is an “environmental microaggression” that communicates to students of color “you don’t belong.”

Celebrating the rape, torture, kidnapping, murder, and beheadings of Jews is not on the list of offensive microaggressions. There is no training that explains why it gives the message “you don’t matter.” And none of the three university presidents who testified before Congress could cogently articulate the circumstances under which calling for the genocide of Jews would violate their code of conduct.

In order to avoid the selective enforcement of campus policies, administrations have two options: They can censor speech Jewish students find hateful the way they censor all the other forms of speech considered hateful by various identity groups. Or they can stick to policies that protect speech and punish harassment, threats, intimidation, and the creation of a hostile environment.

It would be a mistake for universities to enact speech codes designed to censor antisemitic speech. They can address antisemitic harassment, bullying, and discrimination by following existing rules and clarifying definitions. Doing that, however, requires dismantling the poisonous ideology that silences disfavored speech, keeps antisemitism in place, and blinds people to the antisemitism in which they participate. Only then can free speech campus climates flourish.

Paresky is Senior Fellow at the Network Contagion Research Institute (NCRI) and Director of the Aspen Center for Human Development (ACHD), and a former Senior Scholar at FIRE.

The entire article, not paywalled, is here.


Posted by Steve Lubet on December 13, 2023 at 10:18 AM | Permalink | Comments (0)

Tuesday, December 12, 2023

Ed Yong on Long Covid and ME/CFS

Ed Yong has been one of the most important journalists covering long covid and ME/CFS, beginning in 2021 when many psychiatrists were still claiming that both illnesses were manifestations of depression. His new essay in the New York Times is a must read for anyone interested in the sociology of disease. Here is an excerpt:

Covering long Covid solidified my view that science is not the objective, neutral force it is often misconstrued as. It is instead a human endeavor, relentlessly buffeted by our culture, values and politics. As energy-depleting illnesses that disproportionately affect women, long Covid and M.E./C.F.S. are easily belittled by a sexist society that trivializes women’s pain, and a capitalist one that values people according to their productivity.

Like the pandemic writ large, long Covid is not just a health problem. It is a social one, and must also be understood as such.

Dismissal and gaslighting — you’re just depressed; it’s in your head — are among the worst aspects of long Covid, and can be as crushing as the physical suffering. They’re hard to fight because the symptoms can be so beyond the realm of everyday experience as to seem unbelievable, and because those same symptoms can sap energy and occlude mental acuity. 

Many long-haulers have told me that they’ve used my work to finally get through to skeptical loved ones, employers and doctors — a use that, naïvely, I hadn’t previously considered.

The entire essay is here, paywalled but most law school libraries probably have subscriptions.

Readers of The Faculty Lounge may recall that I have written much the same, beginning in 2015. Here is an excerpt:

I have not spoken much about ME/CFS, even to close friends, because it has been very hard to bring myself just to say the word “fatigue,” which is a trivializing and demeaning description of the illness. People with ME/CFS are not tired or worn out in any ordinary sense; rather we are neurologically disabled.

Almost every other ME/CFS sufferer has at one time or another been referred to a psychiatrist, after being told dismissively that “there is nothing physically wrong with you.”

Too many employers, insurance carriers, schools, and physicians have failed to recognize the crippling nature of this disease – because “everyone gets fatigued” – and that is not going to change unless we are willing to acknowledge and talk about it openly.

Sometimes, sick people need respect more than anything else.

If you have the stomach to read about some of the medical dismissiveness of long covid, you can begin here.

Comments are open.

Posted by Steve Lubet on December 12, 2023 at 05:14 AM | Permalink | Comments (6)

Monday, December 11, 2023

Rules Enforcement v. Rules Advisement

Here is a good one for the next edition of Berman and Friedman's The Jurisprudence of Sport:

The Kansas City Chiefs had nullified what might have been a game-winning touchdown on pretty great catch-run-and-lateral because a Chief receiver (the guy who scored the TD) lined-up offsides. (Photo and video in the linked story). Chiefs Coach Andy Reid and quarterback Patrick Mahomes were irate about the call after the game (this followed a loss last week in which a non-call on pass interference cost the Chiefs a meaningful chance to tie the game in the closing seconds). The outrage surprised me because (check the photo) the illegal formation is so blatant and obvious. And the official threw the flag as the play began, so he could not have known what would follow or what he was taking away. It could be a let-'em-play situation--under 2:00 in a 3-point game between potential Super Bowl contenders. But I never thought of offsides as a ticky-tack call akin to a foot fault or three-second violation on which refs swallow their whistles. (Compare that with, going back to the Chiefs, refs not calling PI on a hail Mary at the end of last week's game). Maybe offensive offsides (where the players gains a few inches down the field) is different from a defensive player jumping the snap.

It turns out Reid and Mahomes had a different complaint: The officials failed to follow their ordinary practice of advising offensive players, especially receivers, when they line-up offsides and giving an opportunity to correct. The ref explained that the receiver never looked to the official on the sideline for advice and that he was so far over the line that he blocked the view of the ball. The official was helpless--a blatant infraction and no opportunity to follow the soft practice and correct it; the practice does not include the official identifying the problem for the player.

These sorts of "warning" systems offer an interesting insight into how sports rules operate, especially with how officials avoid what are proceed as ticky-tack violations and ensure the players "decide the game." We can distinguish two types of "warning" systems. This one works on request--the player looks to the official for a preliminary ruling to ensure compliance before the official can make a formal call, but the official is not expected to warn the player sua sponte. For others, the ref is in constant communication with the player, without awaiting that request. For example, NBA refs constantly talk to players jockeying in the post about the 3-second violation, warning them to step out of the line when it gets close (which is really at 5 seconds rather than 3). Batters and umpires did a similar dance for years over delays in getting into the box, with the umpire reminding the player about speeding it up when necessary; MLB switched to a formal clock in 2023 when that informal warning system proved ineffective at furthering the policy of moving the game along. It might be interesting to explore which practices develop for which rules and why. The latter cannot work with the offsides call at issue in the Chiefs game--a football field is too large and too loud.

I am trying to think of legal-system analogues to this sort of pre-ruling advice. One is how judges (sometimes) treat pro se civil litigants, advising them on how to proceed and how to correct pleading defects. Another is the informality of discovery, where some judges encourage informal communications between chambers and lawyers and how discovery should proceed, especially when disputes or deadlines arise. And we see that distinction at work--the judge reaches out to help pro se litigants, while the judge still waits for parties to reach out on discovery issues, even if the judge will resolve them without a formal ruling.

Posted by Howard Wasserman on December 11, 2023 at 03:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (0)

Pressuring university presidents

The Times and Michael Dorf consider some of the faculty-governance issues circling the attacks that resulted in Liz Magill's resignation and the targeting of Claudine Gay at Harvard. (Sally Kornbluth has university support, for now). Dorf emphasizes the correctness (if insensitivity) of their answers to the actual questions asked, as well as the bad-faith politics and ideological goals underlying the hearing, Stefanik's questions, and the subsequent attacks.

I will add one other question to the mix: To what extent does gender play a role here? The presidents at the center of the storm are women. Dorf mentions three schools--Columbia, Cornell, and NYU--that have dealt with antisemitic incidents; all have women presidents. This was not the dynamic at the hearing, where women served as chair and lead attack dog. But wealthy male alumni and commentators have led the post-hearing charge. And I cannot help but wonder what would have happened or what would be happening now if male campus leaders had given legally accurate-if-ham-fisted answers.

On a separate-but-related note, I do not understand this statement from FIRE cheering Magill's resignation as an opportunity for Penn to reboot on protecting student speech (Penn is second-to-last in FIRE absurd rankings that have someone become a meaningful standard for evaluating campus speech). FIRE argues that "[a] change of leadership could be exactly what Penn needs — as long as the new leadership prizes dialogue, ideological non-conformity, a culture of free speech that takes seriously the search for truth, and the process of debate and discussion that will get students there." But Magill faced pressure to resign because she took (if in an overly lawyered way) the position FIRE advocates for--offensive antisemitic speech is protected if it stays with First Amendment bounds. Why does FIRE believe a future president will adopt and advocate for that position, having seen what happens when she does? Maybe this is about the inconsistency (so FIRE will move from Camp Three to Camp One when the right president comes in. But, again, that is not the question Stefanik asked. Moreover, many of the post-hearing attacks have framed it as "failing to protect Jewish students from antisemitism," not "restricted lots of speech until it targeted Jews." So I would not expect Magill's successor to come storming onto campus sounding like an academic Ira Glasser. 

Posted by Howard Wasserman on December 11, 2023 at 12:26 PM in Howard Wasserman | Permalink | Comments (0)

Will the Supreme Court's Ethics Code Make Any Difference

The introduction to the Supreme Court’s new ethics code says that it is just a recap of existing principles.

Not quite, as I explain in my new column for The Hill. Here is the gist:

Will the Supreme Court’s new code make it more or less ethical? 

by Steven Lubet, opinion contributor - 12/11/23

Despite the justices’ insistence that the code only restates their existing “common law” ethics rules, there are, in fact, provisions that revise or contradict several of the court’s previous statements and practices, for better or worse.

If the provision on congressional testimony may broaden the court’s public responsiveness, another aspect of the code — in this case, the absence of a provision — seems to backtrack on an earlier commitment to greater transparency.

A “Statement on Ethics Principles and Practices,” issued by the court on April 25, and signed by all nine justices, addressed the criticism that they seldom provide reasons for their recusals. Although short of an unqualified commitment, the justices stated that in most circumstances “a Justice may provide a summary explanation of a recusal decision.”

Regrettably, it seems that the justices’ commitment to even that level of transparency was short-lived. There is no provision for recusal explanations in either the code itself or the five-page commentary appended to it.

You can read the full essay in The Hill.

Posted by Steve Lubet on December 11, 2023 at 10:47 AM | Permalink | Comments (0)

Sunday, December 10, 2023

Confusing what happened and what can happen on campus

Less than a week having lapsed since The Hearing, we have entered the stage in which people talk about the series of events in a way that is factually incorrect or confuses the issues.

1) Eugene Volokh writes up something I thought about after watching the video (which Steve linked to) of MIT grad student Talia Khan: Khan confuses several things, some of which the university can and should address and some of which it cannot and should not address. Khan talks about groups of students storming the offices of Jewish faculty, students blocking access to buildings, university enforcement of an office-banner rule against Khan's pro-Israel signs that was not enforced against Black Lives Matter posters, and an interfaith chaplain singling out Jewish students--all of that, if true, represents misconduct by university officials or content-discriminatory enforcement (or non-enforcement) of university rules. But Khan also talks about leaving her study group because members said the Jews at the Nova festival deserved to die; the university cannot and should not police repugnant statements in personal conversations.

A different part of Khan's statement struck me while raising the same problem. She mentions a classmate who was afraid to leave his dorm. But we again need to know more about why. Was it to avoid the offense of offensive signs and statements from protesters or was it to avoid the physical encounters? That makes a difference about how we understand not the antisemitism of it, but to understand what universities can or should do about it.

2) I have the same reaction to this piece in The Forward by a Penn undergrad alum and grad student at Columbia. She begins with the question of why Liz Magill "didn't immediately answer with an unequivocal, resounding 'Yes' when asked if 'calling for the genocide of Jews' is antisemitic?" She then shifts to a classroom assignment, in which the professor criticized her for presenting something on the Holocaust (using clips of the film Shoah) because it would make other students (those out at protests) feel uncomfortable and unsafe in the classroom and that "'this is a particular moment where Jewish suffering is not what people want to hear about.'" As with Khan, if true, this represents the university (through a professor in the classroom) infringing the speech rights of Jewish students because of the Jewish content of their speech. That is not what the hearing or the presidents' answers were about.

3) To kvell for a moment: My kid got into Wesleyan this weekend. So I was interested in this short interview with Wesleyan President Michael Roth, who in a previous era of university hatred spoke eloquently of liberal-arts education. Roth almost got it right, but not quite. He admits that his armchair quarterbacking is easy; insists that the presidents' obvious answer was "yes;" then insists that offensive speech is not violence and that students not have a right to avoid offense from non-targeted public speech. But that third point undermines the second point, unless there is an "advocacy of genocide" exception to the First Amendment or "advocacy of genocide" is, per se, incitement under Brandenburg or a true threat; neither of those points is true and I do not hear Roth suggesting either is. So I will deduct half a cheer for Roth for giving an easy answer, presumably knowing that he could not (given Wesleyan's commitments to students) to enforce that easy answer against a peaceful campus protest that included "globalize intifada" chants and signs. Still, I am glad my kid is going to Wesleyan.

4) One narrative has Magill, Gay, and Kornbluth refusing to say calls for genocide of Jews are antisemitic; this is erroneous, as they were not asked this, did not say it, and , in fact, tried to denounce such content. Nevertheless, the narrative has taken hold. Doug Emhoff said it at the menorah lighting. The author of the Forward piece linked above began with it. On my wife's listserv of Jewish alumnae, some insisted that the presidents refused to say that calls for genocide are even "bad."

5) If Paul agrees with me, that must mean we have found the correct answer.

Posted by Howard Wasserman on December 10, 2023 at 01:04 PM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Saturday, December 09, 2023

The Genocide Convention and "Incitement"

It may be worth adding to the discussion that the U.S. Code prohibits genocide (18 U.S.C. 1091(a)), and punishes anyone who "directly and publicly incites" that offense with up to five years in prison. (18 U.S.C. 1091(c)). The statute follows U.S. ratification of the Genocide Convention by the Senate under President Reagan; the ratification contained several reservations which have been criticized as unduly restricting the scope of the prohibition. One explicit reservation was that the Senate, then under Republican control, made clear that abstract advocacy of genocide was protected by the First Amendment: "The criminal laws of many countries ban speech related to crimes such as genocide on the theory that this deters the acts themselves. The framers of our Constitution, on the other hand, were of a different view." International Convention on the Prevention and Punishment of the Crime of Genocide, S. Exec. Rept. 99-2 (1985). Kenneth Marcus, whose credentials fighting antisemitism as an academic and public official are unimpeachable, wrote in his remarkable paper on the techniques of inciting genocide Accusation in a Mirror, "most importantly for present purposes, actionable statements must be uttered in a sufficiently direct manner. The Genocide Convention and related authorities do not prohibit casual or indirect utterances, nor do they provide a general prohibition on hate speech." Whether U.S. law is wise in protecting exhortations to genocide which other countries ban is a matter which is subject to reasonable debate.  In a world which has for decades used political dog whistles to great effect, it is also worth discussing whether particular indirect statements are actually intentional incitements.

But Congress has no standing to point the finger at the Ivy Leagues. Congress writes the laws, and if they believe the First Amendment does not protect particular speech, that certain utterances promote genocide, and that such speech should be punished, they need only pass a statute, instead of lashing out at others for failing to do precisely what they have chosen not to do (or cannot do, or do not actually believe should be done).

Kenneth L. Marcus, Accusation in A Mirror, 43 Loy. U. Chi. L.J. 357, 385 (2012)

Posted by Jack Chin on December 9, 2023 at 11:11 PM | Permalink | Comments (4)

A Few Comments on This Week's Free Speech Events [EDITED]

[I've made a couple of edits, partly in light of ongoing events.]

"A few" mostly because Howard has done the work, and partly because I cannot comment on all of it. Literally: I only read the transcripts today and while I have read some commentary I have no intention of wading through all of it. I would say in brief that I agree with Howard, albeit with differences of emphasis and leaving aside certain areas I am just not interested in (Democrats vs. Republicans; Who's a Hypocrite Now?; most questions about bad faith, especially if they are aimed mostly at political actors who are elected officials, and not also at powerful political actors who are the heads of multi-million or multi-billion dollar corporate enterprises that are sensitive to the winds of consumer, stakeholder, and public opinion--in other words, university presidents).

The university presidents' answers to (dumb, foolishly yes-or-no) questions were very poorly delivered and basically correct. (Their prepared statements were a little better. But they were written as if in the knowledge that they would be ignored. Most opening statements are. But a better approach would have been to encourage the presidents to speak not in bureaucratic form, but as if writing a letter to a friend asking them to explain what the hell is going on.) President Magill's subsequent volte-face was an abdication of her duty. (But not, so far as I can tell, the reason why she lost her job. Had she done the wrong thing much earlier, she might have kept it, for the wrong reasons.*) The First Amendment protects a good deal of the speech that was complained about--and rightly so. Universities that purport to follow the First Amendment should follow the same standard.

More broadly, words and slogans do have complex meanings and legal implications depending on the understanding of the speaker and the context of their delivery, with that context potentially including the understanding of listeners. (This seems both an obvious and an unpopular point. A good deal of the "dog whistle" literature and its capacious expansion, and much of the discussion of Confederate and other symbols, seems to reject this point, sometimes quite firmly and openly.) Universities, public and private, can, consistent with the First Amendment, regulate speech more and in different ways in particular contexts and for reasons directly related to their core functions. When it comes to professors speaking way off their brief or in improper ways in particular contexts involving the direct performance of their duties, such as in the classroom, for example, they should do so. But they cannot and should not willy-nilly regulate all speech on campus, such as student speech in protest, both for reasons of the First Amendment and because doing so is inconsistent with other purposes of the university, whether or not students enjoy a freestanding right of "academic freedom" regarding all such speech (they do not; it's a misapplication of the term). And the fact that they cannot and should not do so should not be altered on the basis of terms such as "community," "harm," "sensitivity," and the like, a conclusion that does not require disparaging those concerns but does require rejecting some of those arguments as bases for universities becoming more censorious. 

To beat a dead horse of my own, the most relevant question seems to me to be one of enforcement--consistent, even-handed, accompanied by due process, and also real, existing, and sometimes and quite properly punitive. There must be real enforcement even if that requires the expenditure of university resources, even if it requires police in extreme cases, and even if it outrages students or professors. For me, the most important sentence in Howard's several posts is this one: "Some unprotected speech and conduct--occupying buildings, interrupting classes,...lacks protection regardless of its antisemitic content." (I omitted two examples that I think are more complicated and less worrisome as such.) We could add other conduct to that list, such as vandalism, assault, and direct harassment. It's the job of universities that value their mission and that value both freedom of speech and academic freedom to enforce its rules barring such conduct. Without it, whatever statements universities make about what what is and isn't permitted are not much use. None of it should happen without due process, but it should happen. If that requires extra university resources--including using those resources to identify students, who understandably would prefer to do as they wish without the university identifying them--then so be it. And it should happen consistently without regard to the identity of the actors or the viewpoints they are advancing. I will add that one bit of good news that seems to have come out of the week's events is a wider recognition--or remembering--that it is actually a good and necessary thing to guard against heckler's vetoes. That realization won't mean much, however, without actual enforcement of the rules regulating or forbidding them.  

Universities ought also to make clear that they will unequivocally reject student demands that the university refrain from investigating and disciplining them for misconduct of this sort. "We will occupy this building unless and until you promise not to discipline us for occupying this building" should be met with a flat "No" every time. If that seems to go against the Spirit of '68, I can only say that some of what the student movements did in '68 was in fact simply wrong.    

Universities have a deeply checkered recent record on this point, in my view, and it is precisely for this reason that a) they are now facing these problems and b) they also face charges of inconsistency and hypocrisy. Howard asks: "Given that we cannot predict the future, what should universities do? Is an acknowledgement of the change--which no one has done--sufficient? Must it include a mea culpa (or kaper lanu--a detailed list of past improper firings, expulsions, and sanctions against faculty and students?" If you'll forgive the upward inflection, I would answer, "Maybe?" I'm not nuts about commissions of inquiry, which are generally tedious and often serve as acts of whitewashing. But an honest examination by universities, including the issuance of a public report, might be in order. The charge of such investigations might include how they have dealt with campus disruptions and violations, whether they have acted consistently, what process they have had in place for adjudication and enforcement, whether punishments have been meted out at all and, if so, whether they have been consistently and fair, whether they have acted consistently on such matters as the recognition or rejection of student groups, how they deal with "disruptive" or "controversial" speakers, whether they have a sound policy on funding for protection for such events or one that imposes chilling burdens on groups that invite those speakers, and how it intends to act going forward.

If it were undertaken seriously, such a report might result in some embarrassing results and make some news. It might also result in some learning and some leavening of criticism. I do not think universities have an easy job of it: it's tough to identify who is misbehaving in the moment, enforcement responses may be calibrated to avoid escalation, punishment shouldn't be excessively lenient but doesn't have to be draconian, and so on. But all these things should have (or have had) equal application, and some ex post complications could be anticipated and headed off ex ante. Maybe even an unsparingly honest report would look better than I expect; maybe it would look worse; surely sometimes it would identify particular officials who deliberately interfered with or manipulated these policies or stood by when their duty was to act, for reasons of politics or bias, and who belong in different work. It might also identify students who were disciplined, formally or informally, for protected speech. But yes, even if I think the primary question is one of looking forward, surely some retrospection and study is in order.

Two final points. First, this is all about what happens on campus, not off campus. I remain concerned about the dynamic off-campus, while noting my earlier point that it's the general dynamic and the resources involved that concerns me, and that this doesn't mean employers should be utterly barred from rejecting, say, a prospective employee who has a hobby of ripping down posters, among other things. (That example seems so two weeks ago, but there are still around 140 posters' worth of remaining hostages to go, and Hamas appears to be strangely reticent concerning the whereabouts, well-being, and fate of ten women still in captivity.) Students should neither be subjected to a McCarthyite campaign, especially one that fails to distinguish between the outrageous and the merely wrong or objectionable, nor categorically (and quite impossibly) protected from ever being publicly shamed for what they say or do. And although the story is more complicated by the fact that more or less internal stakeholders were involved, I would say something similar about university presidents. Perhaps some should stay and some should go, not so much in for last week's events as for the weeks, months, or years before that; but not because of mob pressure. 

Finally, I note the letter shared below by Orly. The Israeli university presidents are not wrong to find the American university presidents' testimony lacking; everyone does, even those who agree with important aspects of it. Their statement about what freedom of speech in the United States requires is much more questionable. I think the letter is best understood not as showing that the American university presidents were wrong on that point, but as revealing a fundamental difference about what free speech in general entails and what it must not protect. Indeed, I'm surprised I haven't seen that argument more in the American context. Of course I have seen general incorrect assertions that the First Amendment does not protect "hate speech." But I haven't seen many full-throated arguments that recent events on campus and elsewhere suggest that the regnant interpretation of the Speech Clause is wrong and should be rejected in favor of a more confined one. As long as so many people are changing places (but not everyone--right or wrong, some have indeed been both consistent and even-handed), it would have been much more interesting to hear Rep. Stefanik arguing that the First Amendment should not be interpreted to protect "words that wound." She would gain strange new respect in unusual circles, to the extent that the people in those circles have not themselves changed places.    

* And an extra note about President Magill's departure, which came as I was writing the post, and now about pressure to force the resignation of Harvard's president, Claudine Gay. I have no particular brief for or against the three university presidents who testified last week. There are ample reasons to be critical of universities' commitments to free speech and the consistency of that commitment regardless of the speaker or issue involved. Those reasons far precede last week's events. A good-faith course correction would be a good, even an urgent, thing. But, in keeping with the actual purpose of congressional hearings, last week's testimony involved three prominent universities, not necessarily three of the worst universities on these issues, Again, what the presidents actually said was correct, although tone-deaf and not necessarily consistent with their actions on other controversies and with other speakers or issues. Whether they should stay or go, their universities' response should certainly not be to alter university rules of conduct in ways that are even more destructive of free speech. And members of Congress are even poorer at making university staffing decisions than university boards of trustees. "One down, two to go" is not what I would consider a genuinely constructive step forward in getting universities back to basics.   

Posted by Paul Horwitz on December 9, 2023 at 01:59 PM in Paul Horwitz | Permalink | Comments (0)

Saturday Music Post - Yesterday

Paul McCartney's "Yesterday" is often said to be the most covered song of all time, with well over 2000 recorded versions (others say the honor goes to George Gershwin's "Summertime"). The Beatles' original 1965 release featured McCartney's solo vocal, accompanied by an acoustic guitar and a string quartet. It was an indication of things to come, as the Beatles expanded their arrangements well beyond the standard rock quartet of the Cavern Club and Hamburg waterfront days. As the story goes, the melody came to Paul in a dream. Upon waking up, he ran to the piano to make sure he didn't forget it. For some time afterward, McCartney worried that he had actually remembered someone else's tune, and refrained from recording it for fear of unintentional plagiarism. He finally figured out that it was his own in time to include it on the album Help.

The clips are at The Faculty Lounge.

Posted by Steve Lubet on December 9, 2023 at 06:27 AM | Permalink | Comments (0)

Friday, December 08, 2023

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

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

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

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

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

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

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

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

ews and Israelis on campuses. 

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

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

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

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

Prof. Ehud Grossman, President of Ariel University 

Prof. Ariel Porat, President of Tel-Aviv University 

Prof. Ron Robin, President of the University of Haifa 

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

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

A mess of stuff on campus speech

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Presidential Quo Warranto

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

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

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

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

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

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


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

Race or Rez?

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

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


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


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

Thursday, December 07, 2023

Poor Gerald Ford

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

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

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

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

Woody Guthrie on Hanukkah

Chag Sameach, beginning tonight at 4:19 CT.


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

Many camps respond to the antisemitism hearing

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

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

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

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

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

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

Review of "Washington's Heir"

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

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

Wednesday, December 06, 2023

Penn abandons the First Amendment (Updated)

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

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

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

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

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

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

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

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

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

“The Undersigned Hereby Agrees to Act Sensibly“

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

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

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

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

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

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

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

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

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

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

Harvard Hillel responds to President Gay

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

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

Here is the key paragraph:

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

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

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

I reprint the email in full after the jump.

Continue reading "Harvard Hillel responds to President Gay"

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

More oxes, more gore, more free-speech opportunism

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

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

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


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

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

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

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

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

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

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

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

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

What John Roberts Could Learn From Niccolò Machiavelli

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

What John Roberts Could Learn From Niccolò Machiavelli

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

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

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

You can read the full essay in Washington Monthly.

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

Tuesday, December 05, 2023

Court dumps tester case

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

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

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

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

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

Monday, December 04, 2023

Tushnet on Ephemeral and Enduring Constitutional Scholarship

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

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

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

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

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

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

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

Misinformation at the Oakland City Council

Presented here without comment.


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

A Thought Experiment About Richard Nixon

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

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

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

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

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

Sunday, December 03, 2023

Swing Justices and "Legacies," Again

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

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

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


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

Saturday, December 02, 2023

Oxes, goring, etc.

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

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

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

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

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

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

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

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

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

The clips are on The Faculty Lounge.


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

Friday, December 01, 2023

Sandra Day O'Connor (1930-2023)

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

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

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

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

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

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

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

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

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

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

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

Thursday, November 30, 2023

Judicial Ethics Reform Through Binding Resignations

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

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


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


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

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

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

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

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

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

The panelists include:

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

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

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

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


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

Justice Jackson's Conference Notes from Youngstown

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


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

Wednesday, November 29, 2023

Proofreading the Justices

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


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

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

A Spector Is Haunting the University

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

A Specter Haunting the University


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

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

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

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

Continue reading "A Spector Is Haunting the University"

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

Tuesday, November 28, 2023

Some Thoughts About the Latest Law Review Imbroglio

The news last week was that the Harvard Law Review editorial board had voted "not to proceed with publication" of an online blog post that is more or less about the international law status of Israeli military action in Gaza, despite that post having been duly commissioned by the blog's editors and having gone through the process that culminates in its being posted. Here is a story about it in The Intercept; here's one in the Guardian. You can read the article itself at The Nation, which decided to run it itself, albeit not without succumbing to the desire for a clickbait headline. And here is a note from the Law Review's editors. I limit myself to the information in those sources; if more illumination was provided on social media, I did not seek it there. I'm late to the party by Internet time, but I offer some thoughts below. I try to make any assumptions or unanswered questions clear. 

1: One thing to note at the outset is that the writing was slated to run on the HLR's blog, not in the journal or "even" the HLR Forum. The Guardian article and the Nation's preface to the actual post make that clear; the Intercept article mentions it in passing. Both the Intercept and the Guardian do employ some slippage in their language, repeatedly emphasizing the prestige of the parent journal, referring variously to the writing as an "essay," an "article," and so on, and lamenting that the post will now "never be published with the Harvard Law Review." That makes for more eyeballs. But still: it's just a blog post! No one takes blogs or blog posts seriously. (You can decide for yourself whether I'm speaking with irony, accuracy, or both. Regardless, henceforth the editors of PrawfsBlawg, taking a page from the folks in Cambridge and the iron law of title inflation, will be known as "Online Chairs.")

Perhaps that suggests that discussion of the controversy could be drained of some of the language of high drama. That doesn't alter my opinion about the wrongness of the editors' ultimate decision. But it does suggest that some of the Olympian verbiage and prestige-mongering might be toned down. The post will indeed "never be published with the Harvard Law Review." But it was never going to be published in the Harvard Law Review! On the other hand, it is also relevant on the other side of the ledger. One does not reasonably expect a blog post to be scholarship or to meet the same standards that might be expected for the journal itself. However vainly, one does expect everything a scholar writes on his or her subject, even in a blog post or amicus brief, to be accurate and honest. But a scholar can surely opine or editorialize in a blog post, including about current events, and including doing so in ways that a scholar might avoid in a scholarly article. (This time I am obviously speaking ironically. People editorialize often and wildly in law review articles, often about current events, and on matters both within and far outside their expertise.) To the extent that reactions to the decision not to publish focus on its not being sufficiently "scholarly" or not good enough to warrant publication, a question which is only relevant if that was the reason for the decision not to publish, those standards are misplaced.  

2: Assuming the facts are as reported, the post should have been published. I assume, per the Intercept, that the post was "solicited, commissioned, contracted, submitted, edited, fact checked, copy edited, and approved by the relevant editors" and that all this happened "in line with the Law Review’s standard procedures" for posts on the blog. If so, and absent something like a late discovery of plagiarism or defamatory material--which presumably would still have been dealt with through normal processes--that should be that. The Law Review editors' note states that after the regular process had been followed, "the full body met and deliberated over whether to publish a particular Blog piece that had been solicited by two editors.  A substantial majority voted not to proceed with publication." It had been more than solicited by this point. One could imagine an argument that the full board can always, in theory, make a final decision not to proceed with publication of any sort of piece within the HLR "brand." But I assume it does not generally do so. ("One last time while we still have the galleys in hand: Is everyone okay with running this Foreword?") I see no relevant reason, and have read of none, why it should have acted differently here. The post should have run. The editors erred.

3: It is never a bad time to question law review processes (and substance!). That goes for the processes involving its online supplements and blogs and other outlets as well as the journal itself. Since there was a process and it was apparently followed, the piece should have been posted. But that doesn't mean the process makes sense or is an academically sound one. I'm not questioning the good faith of the "Online Chairs" in this instance. But obviously, if (as the description of the process suggests) they have autonomy in their choices, it's a system that is vulnerable to unchecked bad decision-making or abuse. (The usual abuses, for law reviews, would be and are favoritism, deal-making, careerism, and so on, but certainly naked politics belongs on the list too.) Maybe the Harvard Law Review doesn't actually need a blog. (Who does?) Maybe if it has one, it should limit itself to non-substantive or milquetoast posts. Maybe if it runs substantive pieces, there should be greater checks on solicitation practices and a further checkpoint before acceptance and publication. That's especially true in that the actual value of the blog is not that it's a blog, but that it gets to call itself the Harvard Law Review Blog, so that authors can list it as such on CVs and journalists can talk about it as if it is an august publication. Maybe it will now change the substance or processes of its blog accordingly. Maybe it should! But not midstream.

4: There is certainly nothing wrong, in my view, with a writer on international law arguing, inter alia, that Israeli action toward Gaza after October 7 constitutes genocide, or that (if I read the author's piece in the Nation correctly) a proper framework must be employed to understand its actions and that framework can be found in the events of 1947-49 and their sequelae. The argument might or might not be wrong, but it's a pretty standard line of inquiry and hardly unspeakable (if "unspeakable" is even a relevant limitation on scholarly writing). The piece itself seems to me to be more of a series of assertions than a set of arguments, but, again, it's just a blog post. (Nor is assertion without argument absent from law reviews themselves.) And it seems to me to use airy abstractions, scholarly abstruseness, and grad-school filigrees to obscure acts of terrible violence while complaining about how others have obscured acts of terrible violence with airy abstractions and scholarly abstruseness. But that's standard-issue stuff for scholarship. While most of the piece is outside my subject matter, I do think its first, second, and sixth paragraphs are silly and melodramatic and are also neither especially accurate nor at all healthy in their assertions about what legal academia is or what it should be. (Are "leading law schools and legal scholars in the United States" really going around "fashion[ing] their silence as impartiality?" Why should one care about "leading law schools" as such on this subject anyway, other than for the usual reasons of elite self-regard? Why on earth would one turn to law professors, as opposed to moral philosophers or, say, just plain folks, when "moral clarity" is "urgent?" Did I miss the required 1L class on moral clarity?) But all this is par for the course, for many blog posts and no shortage of legal scholarship. And none of this appears to have bothered the editors as such, let alone the specific editors who apparently were given free rein to solicit and run blog posts. If the Law Review's email to the author is to be credited, its reasons for spiking the post had nothing to do with any "substantive or technical aspects of [the] piece."

So, again, it should have run. If a bunch of editors elsewhere on the journal then decided the piece was objectionable, they could have asked the blog editors to hasten their work on the response piece that I naturally assume those editors had already solicited. If none was in the offing, for some strange reason, they could have insisted that one be solicited. (It could have been on the main issues, but given the paragraphs I mention above, I think Stanley Fish could have penned a bang-up response.) If the online editors refused to run one, that would be a good time to force a vote or revise the journal's blog policies.  

5: In the Guardian piece, the author of the post calls the decision to kill it an act of "discrimination" and censorship. The first charge seems inapt. The general sense of the reporting (including an email from one of the online editors) suggests that some editors "oppose[d] or [were] offended by the piece" but that the larger concern was that the piece might provoke a reaction from members of the public who might in turn harass, dox or otherwise attempt to intimidate our editors, staff and HLR leadership." Opposition and offense are not legitimate reasons to kill a piece that has already been through the process. They are not, for that matter, legitimate reasons to kill any piece, in any corner of the Law Review or in any other scholarly forum, at the beginning of the process, regardless of the topic of the article.

I think there is room for considerable sympathy on the final reason, however, even though it doesn't alter my conclusions. To the extent that the concern is professional (editors worrying about "risk[ing] their futures"), I doubt that running the blog post would have had consequences at all but the most foolish places; it's a far cry from the kind of conduct that law firms waved their hands about. But the prospect of online identification (I'm not sure calling it "doxxing" is fully accurate; that non-precise term seems to be getting ever more imprecise) and harassment seem much more likely, no matter that running the piece once it had been accepted would be the proper decision or that the journal might run subsequent posts criticizing the first one.

I've already written here several times that I'm deeply disturbed by that dynamic, especially given the extra charge that social media gives it, and think any civil libertarian should be. I do not think there is a right to not be identified or not be criticized for even proper conduct, let alone improper conduct, or that there necessarily should be. If, say, you have spent several years constructing a public persona, however phony, that calls for crushing corporate America, it's kind of okay for a corporate law firm to consider you a bad fit, even if its usual tendency has been to ignore applicants' views as long as they have the right pedigree. But one can still oppose the large-scale operationalization of that sort of mob or crowd pressure--as some have been saying for many years now--and the subsequent weak-kneed response by employers and other institutions, and think that this dynamic is harmful to civic, and civil, discourse.

In any event, this is a far cry from some of the more ridiculous statements that have been made along these lines. This is not "we demand the right to publicly smash windows, or block or occupy buildings, or tear down posters, but you know, in 'private,' and definitely without professional consequences." Yet mobs, and individuals who engage in individualized harassment, are not especially good at drawing these distinctions. So I can sympathize with the student editors' fears, and I think their decision is best understood as one of self-preservation rather than politics, let alone discrimination. But those fears and my sympathy don't change their job or the obligations attached to it. A wrongful action that I can sympathize with is still wrongful. (I assume fear, and not politics, was behind the decision of the Harvard Law Review editors to deny membership to Jonathan Lubell in 1953.)   

6: This incident may be unusual. But it's not unique. It ain't all about Gaza and the political sensitivities around it, or Bill Ackman or "doxxing trucks." If this was a wrongful act of censorship, then so was the effort first to bowdlerize and then the outright cancellation of Larry Alexander's piece in the Emory Law Journal not so long ago. If the HLR editors demanding that an accepted publication be spiked despite its having gone through the usual processes constitutes a (successful) effort at censorship, then a similar label should attach to the (unsuccessful) effort of Oxford University Press USA employees to get the press to "reconsider" its publication of Holly Lawford-Smith's book Gender-Critical Feminism. The same goes for the American Indian Law Review's abrupt rejection, also of reasonably recent vintage, of an article it had already agreed to publish.

If the more general argument is that the editors wrongly took political considerations into account instead of simply publishing a plausibly acceptable scholarly writing, I welcome it! But any honest reader of law reviews in the past several years (not to speak of years past) must acknowledge that their selection process has been quite political--increasingly so--even (or especially) when such selections are not visible. (Sometimes they are. When you run a whole issue or symposium devoted to a particular politically inflected substantive view and exclude any questioning, doubting, or critical views, even when it's obvious that such views exist and that there is ample room for serious, good-faith scholarly questions and criticism on the topic, that's a visibly political decision, as well as a bad one.) As I said, I doubt politics were at the bottom of the editors' action here. But if people believe otherwise and still have a problem with it, they will not lack occasions for alarm. 

Posted by Paul Horwitz on November 28, 2023 at 03:22 PM in Paul Horwitz | Permalink | Comments (0)

Monday, November 27, 2023

Herb Block on the Steel Seizure Case

One of my favorite aspects of writing a book involves selecting illustrations. Here is a Herb Block cartoon from June 1952 that I will probably use in my book about Justice Jackson's opinion in the case.


Posted by Gerard Magliocca on November 27, 2023 at 09:56 PM | Permalink | Comments (0)

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 HopkinsSouthern 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:

Marker drop

My final class at Northwestern.

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