Free Speech

"Here I Saw What Might Well Happen …"

|The Volokh Conspiracy |

I much like some of the songs by Yuri Shevchuk, of the Russian band DDT; he began writing and performing in the late Soviet era, and has continued since then. My favorites among his songs are the more political ones (such as the one about the wreck of the submarine Kursk); quite a few relate to Russia's recent wars, such as in Chechnya.

In particular, there's a 1997 song called Пацаны, transliterated as Patsany, a Russian term that roughly means "guys" or "boys" and refers here to the young Russian men fighting in the First Chechen War; and half a stanza from it keeps bouncing around my head:

Here I saw what might well happen
To Moscow, Ukraine, the Urals

Chechnya, in the north Caucusus right by the Georgian border, is out in the boonies in the eyes of most Russians, I think. It's mostly populated by an ethnic group (the Chechens) that many Russians don't really see as Russian. It's mostly Sunni Muslim, again distinguishing it from "real Russia." (Conversely, Ukraine, which isn't part of the Russian Federation, is still part of cultural Russia to many.)

But part of what Shevchuk was saying (just a part) is that this could be the future not just of the periphery but of the heartland. As to Ukraine, of course, his line proved prophetic.

I keep thinking about this, though not with geographical spread but conceptual, when I hear about much that's been happening here in recent years. I suppose I've long been interested in slippery slopes (I wrote a Harvard Law Review article on them in 2003), but Shevchuk's lines encapsulate it especially well for me. I see the Great USC Chinese Homonym Panic and I see what might well happen to a vast range of other teaching that some ideological groups might label "trauma[tizing]" or dangerous to "mental health" or "harm[ful to] psychological safety."

Of course I've seen it happen to many other professors who have quoted precedents, court filings, historical documents, and other items that actually contain the word "nigger"—it has already happened to me, though with less dire consequences, at least so far—but that might still be conceptual Chechnya to many. But, as Randy Kennedy and I discuss in our draft article, it hasn't stopped there, and it shows no sign of stopping. I see in the current incidents what is likely to happen to the Moscow, Ukraine, and the Urals of American intellectual life: to any expression of ideas or facts that some people (of all races) view as "harmful" to supposedly vulnerable groups. And of course I have the same worry about the spread of many other attempts at suppression of speech and other liberty, in the universities and outside them.

In any case, I'm sure it doesn't take a Russian song about the Chechen War to make this point; but for some reason Patsany has taken up residence just a neuron way from where I think of American free speech debates.

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  1. Nah, it just continues to be the occasional crackpot U action, quickly reversed when better people take notice.

    https://youtu.be/aKnX5wci404

    1. In the words of another singer-songwriter (Suzanne Vega),

      It’s a one-time thing
      It just happens a lot.

      1. Do you hum that one every time you censor a liberal, libertarian, or moderate?

      2. https://www.youtube.com/watch?v=PBJRD1VkxmI

        Against the wind
        We were runnin against the wind
        We were young and strong we were runnin against the wind…..

        1. On the ocean, it’s always best to get into the harbor (if not boatyard) if a bad storm is coming. But if you can’t make it in — and wish to live — the only thing you can do is get into as deep water as you can as quickly as you can, and then keep the bow headed into the wind.

          Antafa and their ilk are dangerous, plenty dangerous, but on an individual basis, they are cowards. When all else fails, head straight into the wind — confront their leader directly as if you had a SWAT team behind you. It works — I’ve done it.

          1. No, you haven’t.

            Also, the imaginary group you’re talking about is “Antifa,” not “Antafa.”

              1. Ignore him, Dr. Ed. He’s a cynic. Some of us know a totally believable story from a totally credible source when we see one.

                1. “The only thing necessary for the triumph of evil is for good men to do nothing.”
                  — Edmund Burke

                  I’m doing something. If people want to believe me or not, that’s their choice, but I’m not making this stuff up.

                  1. How could anyone doubt you?

                    1. Or what their lying eyes saw happening at Mizzou (that was a UM alum, btw), or at Evergreen State, or at Berkley, or at ….

  2. Ukraine, which isn’t part of the Russian Federation, is still part of cultural Russia to many

    Or the other way around, after all the Kievan Rus’ gets more historical play than the Moscovite.

  3. Jacob Blake got cancelled. George Floyd got cancelled. Breona Taylor got cancelled. The fact that you might have to face some criticism because you insist on using (oh, I’m sorry, “mentioning”) some vile racial slurs doesn’t remotely approach a real struggle. To suggest, as in this post, that it represents a life and death struggle is grotesque. That’s especially true since you are well-positioned to avail yourself of the highly lucrative wingnut welfare circuit even if UCLA decided to fire you.

    Get some perspective. Your continued posting on this is starting to be embarrassing.

    1. George Floyd drowned. Pulmonary edema — consequence of the Wuhan COVID disease, which he was recovering from.

      The cops were A-holes, but they didn’t kill him — they didn’t know that pulmonary edema was a consequence of this disease, and had the ambulance arrived, they would have seen the low O2 in his blood and reacted.

      1. Not what the medical examiner said, but I’m sure you know better, or think you do.

        1. Medical examiner said lungs weighed “2-3 times what they should have” due to Pulmonary edema — his words, not mine.

          And Floyd was saying he “couldn’t breathe” even before Derek Chavin showed up. That’s on the CopCam video, go watch it yourself. And why couldn’t he breathe? Pulmonary edema exacerbated by Fentanyl.

          And medical examiner said that if Floyd’s death had been “unattended” — i.e. cops found him dead somewhere — it would definitely be listed as an OD.

          1. I noticed you didn’t bother to rebut the larger point that EV’s whinging about not being able to use racial slurs consequence-free is pathetic. So I’ll assume you agree, and your comment was intended to try to bring some additional information to the discussion, as opposed to trying to derail it with pointless asides.

            As to your actual comment, the only source for the “2-3 times what they should have” alleged quote is from you, in two different comments on this blog. You put it in quotes which among responsible people signals a direct quotation. Would you care to either point to a source or revise your remarks?

            Interestingly, the actual autopsy report lists their weight as about 1000g, which is perfectly normal.

            1. Travis Ormsby: It is absolutely true — Randy Kennedy and I believe and argue that all law professors and law students, of all races, should be free to quote precedents, case documents, and relevant historical materials in discussing class material, “consequence-free.” That extends to quoting slurs and other disturbing facts (and disturbing arguments) from cases.

              In this, we follow the practice of literally over 10,000 court opinions, over 10,000 briefs, thousands of oral arguments and court hearings, and thousands of law review articles. These include materials by the most respected of judges, scholars, and legal advocacy groups, whose commitment to equality is hard to question. And what judges can write and say, law professors and students can teach, study, and discuss. We discuss this in detail in our draft article.

              Of course, I also agree that the police shouldn’t shoot unarmed civilians (except in extraordinarily rare circumstances); but that strikes me as a very different matter.

              1. They actually aren’t very different. The law does not protect Black lives equitably. You can see it in your classroom, where you teach a generation of new lawyers that deploying dehumanizing language is not only OK but good. And you can see it when cops gun Black people down in the street, accurately expecting to get away with it.

                1. I wonder how long you have been woke enough to be allowed the honor of capitalizing “black”. I wonder who bestowed that honor upon you. I wonder if it was you, yourself, signalling your virtue, to yourself and others.

                  I wonder what you used to do before you were wokened. You must have been a terribly vile person.

                2. Travis, Heather McDonald has problems with your stats.
                  https://www.youtube.com/watch?v=3Zorb0Konns

                  1. This is what Heather McDonald has to say about the stats:

                    “For the last five years, the police have fatally shot about 1,000 civilians annually, the vast majority of whom were armed or otherwise dangerous. Black people account for about 23% of those shot and killed by police; they are about 13% of the U.S. population.”

                    1. ” Black people account for about 23% of those shot and killed by police; they are about 13% of the U.S. population.”

                      Except that Black people commit 37% of the violent crimes (153,341 of 408,873 per FBI statistics for 2016). Hence if you want to go with population-based statistics, the cops are killing 15% too FEW Black people….

                3. Travis Ormsby: No, I don’t think that’s right; the error lies in assuming that quoting someone saying something bad is somehow improperly “deploying” that bad statement.

                  For instance, in the Dred Scott case, the Court concluded that a state may place blacks “among the class of persons who are not recognized as citizens, but belong to an inferior and subject race.” That is certainly “dehumanizing language,” even though it didn’t use any slurs.

                  But if someone discussing the case quoted it—“In Dred Scott, the Court concluded that a state may place blacks ‘among the class of persons who are not recognized as citizens, but belong to an inferior and subject race’”—that would be just fine; to criticize the case, we have to be able to talk about what it said. Using the phrase to announce a racist rule, and to assert its moral and legal validity, is wrong; mentioning the phrase in discussing what the Court did, is quite proper.

                  Likewise, in Tharpe v. Ford, Justice Sotomayor wrote,

                  Petitioner Keith Tharpe is a Georgia inmate on death row. For years, Tharpe, who is black, has asked state and federal courts to consider his claim that a white member of the jury that sentenced him to death was biased against him because of his race. Tharpe has presented a signed affidavit from the juror in question, who stated, among other things, that “‘there are two types of black people: 1. Black folks and 2. Niggers,’“ and that Tharpe, “‘who wasn’t in the “good” black folks category in [his] book, should get the electric chair for what he did.’“

                  The juror’s statement was “dehumanizing language”; but I don’t think that Justice Sotomayor was doing anything wrong in quoting that statement in her opinion. (Indeed, I think her writing this was “not only OK but good,” because it clearly, precisely, and vividly made her point that Tharpe was wrongly treated by the legal system.) Nor do I think that any professor or student would be doing anything wrong in quoting Justice Sotomayor’s statement in class discussion.

                  1. EV, you don’t owe vilification like that an answer. Your explanation was persuasive the first, second and tenth time, all available to anyone who’s interested. The continuing attacks, however well-intended, aren’t getting any more original or rational. To be clear, I don’t mean new pieces like your article with Prof. Kennedy. Different scale. Different venue. Totally worthwhile. I’m just talking about crediting rehashed comment thread versions of the same argument with your time and attention. I think it makes you look unduly defensive. Of course it’s your blog, YMMV and all that.

                    1. “Of course it’s your blog . . . ”

                      That is why this blog blesses comments that use a vile racial slur but censors comments that (1) use terms such as “c@p succ@r” or “sl@ck-j@w” or (2) make fun of conservatives.

                      While purported to be a principled advocate for free expression, no less.

                    2. Arthur, though obviously on a different topic, that’s exactly the kind of repeatedly rehashed version of the same complaint I was just saying doesn’t deserve the dignity of a response. Do you think EV didn’t notice any of the first 186 times you made it? Do you think version 187 is the one that will get an answer? Do you think it should?

                      FWIW, taking you at your word, which I do, about the content EV has deleted, this has nonetheless long been one of the most even-handedly moderated blogs I’ve seen. But even if EV were to decide from now on to remove all but the most slavishly pro-Trump comments from his personal blog, how would that conflict with the principles of free expression?

                    3. Mr. Marvin:

                      This is Prof. Volokh’s playground. We play by his rules. He was entitled to censor me. I am able — unless he bans me again — to mention that censorship, and to question (in light of his repeated, partisan, viewpoint-driven censorship) his candidacy to offer pointers to the liberal-libertarian mainstream on free expression and academic freedom.

                      He uses a vile racial slur every chance he gets, sometimes engaging in gymnastics to develop an opportunity to use it. His readers seem to delight in following that lead and, so far as I am aware, he has never censored such usage (although he has censored a number of other comments). After a couple of dozen incidents, that unusual pattern deserves to be identified and considered.

                      Regarding the repetition: I once heard a prominent baseball announcer respond to a critic outside the press box who said ‘you give the score too much:’ ‘I’ll be sure to consider your advice when I’m in the Hall of Fame, waiting for you to get there.’ He later told me that he tried to provide the score and inning at least every 90 seconds or so because ‘listeners join all the time, maybe every second, and it’s my job to take care of those who are kind enough to tune it to my broadcast whenever they arrive.’

                      That announcer is in the Hall of Fame (and was one of the most interesting people I have known), and I try to remember that in the public debates on politics and law, as in baseball, some members of the audience just arrived.

                      I hope I have answered your questions. If not, let me know. Thank you.

                    4. Actually, you didn’t answer how biased moderation of a personal blog could conflict with the principles of free expression. But I’ll respond to what you did.

                      First, thank you. Although your answer did contain several more mentions of the inning and score, it also had some of the play by play and color commentary that used to make your comments here worth reading.

                      My back of the envelope guesstimation indicates your broadcaster friend probably spent about 90% of his time on play-by-play/commentary and 10% on score/inning announcements. Had the score/innings stuff been all he did, I doubt he’d have kept his job long, much less made it into the Hall. The Internet version of the latter is called trolling. The fact that EV has allowed you to do it for so long doesn’t make it worthwhile.

                      As for your ascription of bad faith to his blogging, we’ll have to agree to disagree, because I don’t see it.

                    5. I thought I was done, but it’s an hour later and I’m back. Now that we’ve started down this road, I may as well go a little further.

                      As I suggested above and you already knew, I’ve been reading your comments long enough to be familiar with your previous persona. I often disagreed with that Arthur, but I liked him. Now I just shake my head resignedly when you go into your performative tick of repetitive insults. You’re the drunk MAGA uncle I’m still fond of, but wish for his own sake would stop, to paraphrase Jonah Goldberg, wearing the turkey as a pith helmet.

                      What do you think you accomplish by trolling? Do you really believe, like the announcer, that new readers tune in and are informed by your every ninety seconds announcement of the score? Because I don’t. No doubt you get on some right wing nerves, so if that’s your objective I guess it’s something. But is it worth putting on the clown suit every day? You’re better than that.

                    6. “Actually, you didn’t answer how biased moderation of a personal blog could conflict with the principles of free expression. But I’ll respond to what you did.”

                      The University of Southern California is a private institution. How would USC’s ‘biased moderation’ of campus activities be any less or more deserving of barbs from Prof. Volokh than Prof. Volokh’s ‘biased moderation’ would be deserving of my objections?

                      Thank you for your observations, which I will consider. Just about every element of this blog has deteriorated in recent months and years, and I strongly doubt my contributions are immune from (or unrelated to) that criticism.

                  2. “in the Dred Scott case, the Court concluded that a state may place blacks ‘among the class of persons who are not recognized as citizens, but belong to an inferior and subject race’.”

                    I ask because I do not understand: I was of the impression that _Dredd Scott_ did not affect the status of free> Blacks — or was Taney also making a distinction similar to the one which was made about Tharpe?

                    And as to the latter, would the same situation exist if Keith Tharpw had been White and the juror had made a similar distinction between 1: White folk and 2: White Trash?

                    In much of rural America, a distinction along social class — not race — is made, with two different racially-specific slurs meaning the same thing.

                    And as to Tharpw, he died of cancer. Am interesting discussion from a Black perspective: https://www.theroot.com/death-row-inmate-keith-tharpe-died-in-prison-before-exe-1841235372

                    1. I ask because I do not understand:

                      A refreshing change. You should employ that approach more often.

                      I was of the impression that _Dredd Scott_ did not affect the status of free> Blacks

                      Dred Scott did not affect the status of free blacks as free — i.e., it did not declare blacks who were recognized as free to be slaves. But it affected the status of free blacks in other respects. Specifically: it declared that they were not citizens of the U.S., period.

            2. “the actual autopsy report lists their weight as about 1000g”

              No, the actual autopsy report would have an exact weight, which isn’t included in the version I found on the county website. If you can document an exact figure from a primary source, I’ll freely admit that I was wrong — my source was a secondary source, an article discussing the officer defense strategies.

              However, this might be of interest. https://spectator.org/george-floyd-police-training-minneapolis/

              If those are actual powerpoint slides from MPD officer training, well….

          2. Medical examiner said lungs weighed “2-3 times what they should have” due to Pulmonary edema — his words, not mine.

            Those are not the medical examiner’s words. These are:

            https://www.hennepin.us/-/media/hennepinus/residents/public-safety/documents/floyd-autopsy-6-3-20.pdf

    2. Artie Ray asked me to tell you he already has a cold beer waiting for you in Bannedville.

      1. Grow up, Kirkland….

  4. I like the song though I can’t understand a word of it. With just the punctuation of the first guitar chord and then the start of the vocal and the chord changes it reminded me right away of Leonard Cohen. Not a particular song, though “The Partisan” does come to mind.

    A couple suggestions of songs you might find interesting. John Prine’s song “The Great Compromise” and Danny O’Keefe’s song “So Long Harry Truman.” An interesting version of the latter by Chris Smither, who appears to be riding out the pandemic in his attic:
    https://www.youtube.com/watch?v=oyoVP8dEnOo

  5. As I remember my Soviet History & Politics courses, the Chechens are NOT (ethnic) Russians, nor were the Georgians nor a lot of people in the other Republics. Moscow, i.e. the Russians, ran things, but a lot (I believe the majority) of the people in the USSR were not ethnic Russians.

    Nor, I was told, was Stalin who reportedly spoke with a Georgian accent until his death.

    This was circa Cold War, which was why I was learning it.
    I am not sure how closely the population of ethnic Russians corresponds to the (much smaller) country now known as Russia.

  6. Click here for the uncensored version of the Geto Boyz song “Still,” not to be confused with the edited *Office Space* version.

    https://www.youtube.com/watch?v=ZIUCRXMM4pE

  7. I think Prof. Volokh’s normative point is a no brainer. Kinda boring, really. That’s why you can see the usual suspects on the right trying to extend it to crazytown above.

    The larger issue worth thinking about is providing a public good in a market environment. This reminds me of the reporting, and also legislating.

    The public all three are serving often wants things (no bad words, clickbait, pure populism) that is not good for them.
    But we also live in a capitalist system, wherein the customer is always right.
    In previous posts about this, I was saying ‘thems the breaks, gotta serve the customers!’ But the above analogy to the media and governance has made me come around.
    Merely following the whims of the market does not dispose of the issue. Individuals, particularly those providing public goods, have a responsibility above merely profit margins.
    But honestly all corporations have some responsibility to be good citizens beyond just growth for growth’s sake.

  8. THE VOLOKH CONSPIRACY

    This blog has operated for
    ZERO (0) DAYS
    without using a vile
    racial slur and for
    506 DAYS!!!
    without engaging in partisan,
    viewpoint-driven censorship

    Let’s celebrate the 500+ days on the censorship front and just accept that the vile racial slurs are part of this blog’s nature.

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