The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Free Speech

Filing Motion to Unseal in Cincinnati Police Officer's Libel Case

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WKRC in Cincinnati (James Pilcher) reported several days ago:

A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.

Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the "ok" sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement….

The officer's lawyers were able to get the records sealed and the officer's name replaced by a pseudonym (the court hearings are still open to the public).

They took that step after arguing that some online wrote they knew where the officer lived – information gained from public sources such as the county auditor's website.

The online posters never published that information, but the lawyers argued it could lead to "doxing" – or releasing personal information that could lead to harassment at the officer's home….

The story includes a video that links to what appears to be the Facebook page, and notes that the judge declined to order the page removed. (Ohio law does authorize anti-libel injunctions after a finding on the merits that certain statements are false, but of course there has been no such finding yet.)

I'm quite skeptical about claims that using "ok" signs is a sign of racism; but however the libel lawsuit is resolved, it can't be resolved under seal. Both Ohio law and the First Amendment provide a public right of access to court files, and while that right can be limited in some situations, I doubt that it can be here (though it's hard to tell for sure, given that the entire file now seems to be unavailable, and I can't read any motion to seal or any order granting that motion).

Because of this, I asked Jeffrey M. Nye (Stagnaro, Saba & Patterson) to file a motion to unseal on my behalf, and he graciously agreed to do so (pro bono). Fortunately, after we agreed on this plan, we learned that the Cincinnati Enquirer had filed its own motion, which we could free ride on; here is what we plan on filing tomorrow:

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  1. The other side of this is that cops often have small children.

    I come out of K-12 where you have to protect small children. It’s often a tough call, but do you want some 6-year-old getting killed because his/her/its dad is a cop?

    1. No — I don’t want 6-year-olds getting killed. And indeed there is a chance (thankfully, a very small chance) that when anyone is sufficiently disliked, someone will either attack their children, or the child will get caught in the cross-fire.

      That disliked person could be a police officer, or an abortion provider, or an accused child molester, or a gang member, or one of a wide range of other people. But that can’t justify sealing all cases involving someone whom people may dislike.

      1. Probably a good thing cops can carry without a license in just about every jurisdiction. Too bad everyone else can’t have such a right.

      2. Prof Volockh — it’s not “crossfire” as much as exploiting soft targets, going to the school or following a school bus.

        Or something like this, from the movie “Kindergarten Cop”
        https://www.youtube.com/watch?v=EVgiMfDJQsg

        I don’t claim to have answers, I just know we worry about it.

        1. As an aside, it’s a good idea to tell your children a “special word” that anyone claiming to have been sent by you to pick up the child will know — and anyone else you didn’t send….

          1. As an aside, it’s a good idea to tell your children a “special word” that anyone claiming to have been sent by you to pick up the child will know — and anyone else you didn’t send…

            If you are a billionaire, a U.S. senator, or an A-list movie star, sure. Otherwise, there’s as much need for this as there is for buying an APC to drive them around in to keep them safe.

        2. Dr. Ed: How many police officers’ children are killed each year because of what their parents do? I’m not saying it has never happened — but since you brought it up, and thought it was a significant enough concern to possibly justify sealing, I’m curious what data you have on it.

          1. Who do you think you are, Jonathon Swan?

            1. I assume that Ed read about it in the book or manual that does not exist. (Hat-tip: President Trump)

          2. Good point — it probably is like school shootings, which are *very* rare although you wouldn’t think so. Both of the situations I was incidentally involved in involved family members — one involved a father attempting to kidnap his son (that would up with an arrest) and another involved a girl hiding from her family because of something involving sexual abuse. Didn’t know (or want to know) the details on the latter beyond that we weren’t supposed to tell anyone where she was living.

            I do know that Massachusetts sealed the home addresses of all police officers about 15 years ago now, allegedly for this reason, but who knows.

    2. Is there any reason that anyone (including children) is are risk?

      Please provide any information you may have to the local authorities.

      Unfortunately is has been all to common for people to claim they have received “death threats” which unfortunately may be true but but luckily are seldom carried out.

    3. Burglars, drug dealers, and a whole lot of other criminals also have families. Do they get to hide behind sealed cases?

      Cry me a river. Odds are this cop is no saint, and I’d say trying to hide behind a sealed case just increased the odds.

  2. In other News, Mark Levine just cited the article on CJ Roberts.

    1. For a Conspirator, that’s almost as sweet as being cited approvingly in one of Justice Thomas’ lone justice dissents.

  3. I wonder professor, what sorts of situations, in your opinion, would it be reasonable for the person filing suit in a libel case to be able to win a motion to seal?

    In this case, well, the accusations were public information anyhow, and I doubt access to the case itself would do any harm to the officers reputation (imo it would improve it, as it would give context to the racism accusations that were were baseless and stupid). But are their cases in your opinion where it is a reasonable thing to do?

    1. We have open courts in the country so that the public can effectively monitor what the courts are doing. That’s especially important when the courts are being asked to restrict speech, whether by imposing damages for the speech, or especially by issuing injunctions against speech.

      It’s impossible for the public to do this when the case is entirely sealed, or when the allegations at the heart of the lawsuit are sealed (see, e.g., Parson v. Farley). So I don’t think such sealing would ever be justified. On the other hand, if there are some tangential matters that the plaintiffs seek to seal (e.g., the names of their children, their addresses, their bank account numbers, etc.), when those matters don’t need to be seen to evaluate the court’s actions, then modest redactions of such information may be justifiable.

  4. The article seems to suggest that a cop suing for libel/slander is somehow not a legitimate legal tactic when their name is besmirched with false accusations. Especially assuming that a police officer is probably going to be a limited public figure for First Amendment purposes, I don’t see a problem with them using the civil courts to keep their name clear. It isn’t like the media is going to do the job of honest reporting…

    1. I’m not sure how it seems to suggest this — perhaps the lawsuit has merit. But it’s hard to tell when it’s all sealed, no?

    2. Considering the kinds of scandals it takes for investigations to actually get past the police unions, and the tremendous dirt uncovered once that happens (see Houston for an example), I’d say cops aren’t doing a very honest job either. I bet if the public knew the truth, they’d rank right down there with the media and politicians.

      1. I don’t think most cops are “good” in the sense the public would regard that status. Most are probably “OK” meaning that they won’t actively set someone up, outright lie, plant evidence, etc. But probably a decent amount, especially in cities, are “bad” and do things like that on a regular basis.

        Their job is necessary though and to some extent I think the public is happy “not knowing how the sausage is made.” Give them a safe community and they couldn’t care less absent something blatant. Cops know this is the objective and if that means playing fast and loose on occasion that is just part of the game of law enforcement.

        Now I do not condone this at all, but I do recognize that it is part of the system and has been at least since police were professionalized in the early part of the 20th Century. Maybe it is a laudable goal to finally get this out of the system, but since it is so interwoven into it I don’t know how you really accomplish that. (Perhaps the answer is actually just deconstruct professional policing…?)

        I don’t think most people will like reality without professional policing though. Many will be more than happy to go back to the days where the police stood on the wall and no one asked them about the details on how they kept order (a la A Few Good Men.)

Please to post comments

"Fear of Authoritarian Regimes Is Pushing the Film Industry to Self-Censor"

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A very interesting article in Foreign Affairs by my UCLA School of Law colleague Kal Raustiala; here's an excerpt:

What sets the United States apart from the rest of the world is and has always been its soft power. The Soviets may have equaled the Americans in nuclear capability, but they could never rival the appeal of the "American way of life." And even as China tries to spread its culture across the globe, its rise tends to inspire more trepidation than admiration.

Many ingredients combine to give U.S. soft power its strength and reach, but entertainment and culture have always been central to the mix. Film and television have shaped how the world sees the United States—and how it perceives the country's adversaries. Yet that unique advantage seems to be slipping away. When it comes to some of the great questions of global power politics today, Hollywood has become remarkably timid. On some issues, it has gone silent altogether.

The most glaring example is the growing wariness of U.S. studios to do anything that might imperil their standing with the Chinese government. China's box office is as large as the American one, and entertainment is above all a business. So Hollywood sanitizes or censors topics that Beijing doesn't like. But the phenomenon is not limited to China, nor is it all about revenue. Studios, writers, and producers increasingly fear they will be hacked or harmed if they portray any foreign autocrats in a negative light, be it Russian President Vladimir Putin or North Korean dictator Kim Jong Un.

It wasn't always this way. In the 1930s, Charlie Chaplin's The Great Dictator took on Adolf Hitler. Later, Martin Scorsese's Kundun shone a light on the fate of Tibet, and The Unbearable Lightness of Being and The Hunt for Red October made the Cold War come alive. Today, the market power of China—and the cyberpower of some rogue states—is making studios and creatives think twice about producing such daring, overtly political films. And as the retreat from the kind of films that once bolstered American soft power accelerates, Hollywood is running out of real-life antagonists….

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  1. I mean, that’s capitalism, ain’t it?

    The unfree demand unfree products. We freely provide supply to meet demand.

    Now, I personally am no foe of regulated markets, though I also like free trade, and don’t see how one could regulate our way out of this one, other than
    1) subsidizing films with messages we like, or
    2) mandating that our films are only for Western eyes.

    Both cures seem worse than the disease.

    1. You have an example already, anti-foreign bribery laws. Make it illegal to cooperate with foreign censorship laws. Make it ilegal to discriminate [like removing black characters from Chinese posters] or censor dialogue for political reasons.

      1. Unenforceable. Way too vague to define. Way too many alternative explanations.

        1. Studios are parts of big companies. Such companies fear DOJ investigations.

          China [and others] requires pre-approval. Studio submits film, if actual shown film differs, there is your violation.

          Not saying it will be perfect but it can be done I think.

          1. “Not saying it will be perfect but it can be done I think.”

            Maybe stick to recording residential deeds in Can’t-Keep-Up, Ohio.

            1. Hmm. So you think we SHOULD suck CCP dick so they’ll buy our shit. Okay, got it.

              1. Disaffected, authoritarian, simplistic right-wing hypocrites are among my favorite culture war casualties.

                It appears Conspiracy fans are roughly as selective in supporting freedom of expression as the Conspiracy’s proprietor is.

                1. So you are an enemy of freedom? Seems odd, given all the screetching about it you do.

                  Why do you want an authoritarian domination of the future of humanity? You are so close in your culture war final victory, only to see it slip away.

                  The same Hollywood that boycotts US states, reasonably, for such violations, does not do so for China, doing worse by far, by magnitudes.

      2. Such overt edits are the rarity. The far bigger consequence is the stuff that never gets green-lighted in the first place.

        Who do you prosecute for that? The financiers for not financing “diverse” movies that they think would be unprofitable? The directors who don’t take jobs they think could harm their careers? The casting director who makes choices based on what they think the audience will like? The scriptwriters who write what they think will sell?

        There’s a reason Free Speech fights have always been concerned with the non-enumerated consequences of “chilling effects”, because most such decisions aren’t starkly obvious.

        1. But the overt edits are in fact becoming more commonplace, cases where the edit came in, where we know what the original script was, or what screens were shot. The covert cases, exclusions by inaction, are of course harder. But just because they are hard doesn’t mean you can’t begin to address the easy stuff.

          1. So, if the U.S. government doesn’t like a particular regime, but a particular director is sympathetic to that regime, the director/screenwriter may not exercise his/her own judgment as to the artistic message they are trying to convey in consultation with anyone with whom they want to consult?

            Where is the director’s free speech?

            I don’t see a workable standard that respects the director/writer/studio’s free speech rights while punishing people who unwillingly or reluctantly or whatever gave into a repressive regimes censorship.

            I mean, I think it is disgusting, franky, that US companies of all sorts accommodate the anti-liberal, anti-freedom tendencies and actions of the Chinese government (to name the most powerful at this point). But I don’t see any remotely workable solution that doesn’t just create, essentially, our own office of censorship, which is not only not a cure, it’s just more of the same disease.

            Or do people like Bob suddenly believe that the government is going to competent and efficient at drawing these lines and the anti-censoring-censuring office will not be captured by special interests who will be less interested in the goals we all think it should have and more interested in promoting particular ideologies and favoring friends over their economic rivals? Seriously? No. Just no.

    2. No that is not capitalism.

      1. LOL, just because you don’t like it doesn’t mean it’s not capitalism.

        1. This provides a window into why a certain type of “conservative” (by which I mean Trump supporter) calls everything they don’t like socialism. They don’t know or care what the words mean, they just use the term “capitalism” to mean “things I like” and “socialism” to mean “things I don’t like.”

          Sorry Jimmy. The studios are practicing capitalism. Capitalist entities have always been responsive to illiberal demands/incentives.

        2. No, this situation is not capitalism/freemarket in the relevant sense of the word because would not exist without the unprecedented level of authoritarian pressure exerted by the Communist party on all levels of society.

          Your retort would be like me becoming King of the World and fining every company that dared to sell a product to you 1 billion dollars and then saying ‘lol capitalism, freemarket lol’ when you came to complain.

          1. Do you think I was calling China capitalist? I was talking about Hollywood, chief.

            A capitalist organization does not become communist by selling things to communists.

            1. the companies might be part of a semicapitalist /freemarket system. but the relevant part of the system we’re discussing here ie a gigantic authoritarian government intimidating companies to do what it wants is not what most people would classify as a capitalist/freemarket thing. You were saying it was so you are wrong.

        3. Or it just is not capitalism. Sometimes stupid statements like yours don’t require much of a refutation.

    3. Shame the HELL out of them. Pro-Hong Kong protests at every Hollywood event, every NBA event. Sometimes, I believe some people only respond when their own weapons are used against them.

      The cure for bad speech (censorship) is BETTER speech.

      1. Yeah, that’s legit.

        I don’t know that protest is either Hollywood or the NBA’s chosen ‘weapon’ but your last paragraph is spot on.

        1. Heard a Oscar speech lately? Read NBA Twitter?

          These people breath sanctimony. Self-righteousness is a hell of a drug.

          1. I propose a deal: Right-wingers ditch the bigotry and everyone else shelves the self-righteousness.

            Otherwise, the wages of backwardness and bigotry should be unpleasant and severe. Accountability is overdue.

          2. So you equate organizations that contain lots of liberals with activists on the left.

            That’s quite a gulf your contempt is welding together there.

            Lots of Hollywood movies are plenty right-leaning. Pro war, overtly nationalist, extremely white, etc. Because capitalism will out.

            Similarly, if you think the NBA twitter feed is indicative of the NBA owners’ actual attitudes, you may want to do some research.

            1. The leftist tilt of Hollywood is undeniable and I really wish you would take the partisan blinders off — you are much too smart not to see what we all see. (And before you say it, me being PROUDLY anti-Democrat is much different than being the opposite as a pro-Republican. The GOP is mostly useless (but sadly the only possible home for abolitionists such as I.)

              As for leftists/Democrats being “anti-war” — CITATION NEEDED!!!!

              “Extremely white…” — But enough about the leftist Oscar winners. And producers. And directors. And…

              1. So now it’s just a tilt. I see your backpeddaling. Remember, your original thesis is that protests are Hollywood’s ‘weapon.’ That remains quite silly.

                Being a negatively-based reactionary is not something to be proud of, you empty man.

                You think liberals were big fans of Obama’s adventuring? Don’t be silly. Certainly, they are against the overt militarism Hollywood loves to put out.

                Your final paragraph is irrelevant. Who cares how white Hollywood liberals are? Hollywood continues to make very white movies marketing to the very white American audience. Because $$$.

                1. As the self righteousness has turned to cancel culture … WEAPON.

                  There a very few people that are truly anti-war, but if those who claim the label abandon it the moment a Democrat is elected (and hates Trump because of his opposition to foreign entanglements, one of his few actual principles) they have shown themselves hypocrites.

                  As for the last paragraph — show me, don’t tell me. I am sure that those rich liberals appreciate their brown maids — or are sorry they treated dad’s housekeeper poorly. They take ALL the right positions I am sure …

                  1. ::eyeroll:: overheated rhetoric is not an argument.

                    You want to play semantic games about what anti-war means, go wild. This isn’t debate club; that’ll get you nowhere. I’m quite comfortable noting that the left doesn’t like troops or gun-porn, and yet Hollywood does.

                    Show you that you’re being irrelevant by pointing out how white liberals can be racist? I can’t – your all about trying to make collateral points with no regard for relevac Happy to talk about that later, but that has zero to do with my point about Hollywood’s very white products.

                    1. I am sure that there is a cogent argument in there somewhere, but I’ll be damned if I can figure out what it is????

                      Black people hate action/war flicks?

                    2. I’m quite comfortable noting that the left doesn’t like troops or gun-porn, and yet Hollywood does.

                      Thus Hollywood isn’t the cancel culture cabal you equate them with when you talk about ‘using their weapons against them’

                      Quit with your gish gallop nonsense and read something.

      2. YES.

        And burn the ChiCom flag — that’ll make the news.

    4. Make two versions of the film, one for the US and one for countries that despise the US. Wanna bet which version get smuggled into which countries?

  2. “In the 1930s, Charlie Chaplin’s The Great Dictator took on Adolf Hitler.”

    Oh, that sure stopped him.

    1. Actually, the more I look at this, almost all the examples are bad. By the time The Great Dictator came out, we were already openly supporting the British through Lend-Lease, and word was coming back to the Jewish diaspora about what the Nazis were doing. The Great Dictator was a film that Hollywood was excited about making.

      During World War II, when we were friendly with Stalin, Hollywood made Mission to Moscow. It didn’t make any movies about the purges.

      The Hunt for Red October came along at the very end of the Cold War, in 1990, even though the book was a bestseller years earlier.

      If there are good examples of Hollywood really rocking the boat, OP hasn’t provided them.

      1. Red Dawn and the Amerika tv mini-series are better examples than Hunt for Red October of anti-Soviet productions.

        “It didn’t make any movies about the purges.”

        Communists in Hollywood [including free speech hero Dalton Trumbo] actively obstructed such films.

        1. Bob, I was young at the time, but memory is that the USSR was *pissed* at Amerika and tried to bully the Carter Adm on it.

          1. Your grasp of facts is as impressive as always. Amerika came out towards the end of the Reagan administration.

      2. The Cold War examples seem to have come from an alternate universe in which communism was very popular in the United States and almost no one spoke out against it or produced movies in which the communists were the bad guys. I’d also distinguish the Cold War from conditions behind the Iron Curtain.

        Also, show of hands: when you think of The Unbearable Lightness of Being do you actually think “Finally, the movie that showed the truth about the Prague Spring” or “Finally, the movie that showed Juliette Binoche’s ass”? I mean, I have this vague sense that the Prague Spring happens during the movie but it is mostly about Daniel Day Lewis cheating on Juliette Binoche with Lena Olin which improbably leads to a hot photo session between the two and maybe there is some other guy in it and I honestly had to look it up to realize they actually left Czechoslovakia for part of the move.

  3. In the 1930s, Charlie Chaplin’s The Great Dictator took on Adolf Hitler.

    All the meanwhile kowtowing to the Hays Code and US morality censors.

    IOW, this new self-censorship is just more of the same for different censors.

    What they can’t self-censor, and what the authoritarians can’t sensor either, is the general movie itself — background, house interiors, cars all over, kids with cars and video games, supermarkets, daily life. Khrushchev (sp?) tried pretending everything he saw was just a Potemkin village expressly for him. That’s what they should censor, and yet the only way to do is, by banning American movies and TV shows, won’t work now, what with the Internet and USB sticks. Remember all those reports of North Koreans smuggling American shows around on USB sticks? If North Korea can’t stop it, no one can.

    1. All the meanwhile kowtowing to the Hays Code and US morality censors.

      Correct.

      Remember when TV shows routinely had married couples sleeping in separate beds?

      And while we glory in the free expression of Hollywood’s past, let’s not forget the blacklists and so on.

      The entertainment industry has generally been willing to submit to political bullying more or less forever.

      1. “Remember when TV shows routinely had married couples sleeping in separate beds?”

        You mean the “good old days” conservatives pine for?

        Don’t forget the ‘one foot on the floor’ rule.

        Or ‘no horizontal kisses.’ And ‘no implying sexual relationships between the white and black races.’

        ‘No girl enjoying kissing a bad guy.’

        ‘No blasphemy.’ ‘No making fun of religion.’ ‘A clergyman can’t be a bad guy.’

        It was the Hays Code . . . named for the former head of the Republican National Committee. Still revered by the Focus On The Family boycott department.

        It appears the Chinese have learned something from our Republicans, although a little slow on the uptake.

        1. Do you have similar hatred for the Media Matters Department of Political Correctness and Censorship?

          1. When Media Matters engages in voter suppression and torture, facilitates abusive and bigoted policing, and embraces gay-bashing and immigrant-bashing, I will view Media Matters and the Republican Party similarly.

        2. What was wrong with married couples sleeping in separate beds?
          Children didn’t know about “consummation of a marriage” but adults did, and they actually had to have dialogue, not just body parts for the script.

          Most married couples had children — where did people presume those came from???

          1. LOL, Ed defending the Hays Code.

            1. No, Sarcast0, ANSWER THE DAMN QUESTION!!!

              What’s wrong with keeping children innocent?
              Or do you honestly think that adults didn’t realize that both adults would be in the SAME bed at times?!?

              1. Sometimes kids need to understand that the world is a cruel place.

              2. What’s wrong with keeping children innocent?
                Or do you honestly think that adults didn’t realize that both adults would be in the SAME bed at times?!?

                How stupid do you think kids are, exactly? Their own parents, one presumes, slept in one bed. Do you think those kids didn’t notice that?

    2. Yeah, Hollywood has been pretty great for American exceptionalism worldwide.

  4. Interesting he mentions “Kundun” as a success. Michael Eisner at Disney did everything he could not to release that once he found out how the PRC felt about it. Eventually, Disney decided it had no choice (the film was already in the can and they were getting PR blowback), but it was well understood that this would have a chilling effect on any new films about that subject matter.

  5. Fear, envy, who can tell?

  6. The difference was that there was no Soviet market — and maybe we should impose export taxes on stuff sent to China.

    1. Right, that’s how you prove your libertarian / individualistic bona fides — by interfering with people’s personal individual choices.

      1. No, I am an “America Firster.”

        1. …who has never read the constitution.

  7. Well, let us analyze recent history:

    * Communist kills JFK — the Democrat party is now socialist
    * Pro-Palastinian kills RFK — the Democrat party is rising in anti- Semitism/Israel
    * BLM/Antifa riots and Democrats start capitulating

    I am sensing a pattern, and not a good one …

    1. You found some witty tweet you just had to post, regardless of how off-topic it was?

      1. Really?

        Authoritarianism (and its propaganda/censorship) is as Democrat as slavery/Jim Crow/ the Klan.

        1. You are making it more difficult for Democrats to be magnanimous toward Republicans as the culture war winds down.

        2. The Democratic Party is not socialist, though there are Scandinavia-type socialist (which are readily distinguishable from Soviet/Chinese/Venezuelan style socialists, though I don’t particularly like either flavor, it is unserious to claim they are the same).

          To the extent there is increasing anti-semitism on the left (and there is), it has a way to go before, as is the case with their right wing counterparts, they are marching out in the open chanting “Jews will not replace us” and getting called “very fine people” by the leader of their party.

          BLM and antifa are not the same. At all.

        3. And the Democrats repudiated slavery / Jim Crow / the Klan. Those people who didn’t repudiate each of those, found a home in the welcoming arms of the GOP (google Southern Strategy). And suppression of minority votes, the new Jim Crow, and the Klan are, in 2020, all exclusively Republican endeavors. History didn’t stop in 1955.

          1. Google the Senators/Congressmen/Governors that opposed the 64/65 bills and then provide me a list of those who retired/died Republicans.

            Sell that community college term paper history somewhere else.

            1. Your need to deny the Southern Strategy is telling. As is your ignoring NOVA’s comment about voter suppression and who the Klan votes for today.

              1. There is no fucking Klan today and the idea that there is any organized white supremacist organization with any semblance of power (or even numerical significance) is delusional to the point of Bircher territory.

                Racial discrimination has NEVER been a plank of the Republican party … EVER and I challenge you to find a governing document that states otherwise. The GOP is DAMN imperfect in its execution of its principles, but it is BETTER that you and BETTER than NOVA lawyer’s and BETTER that the Democrat party’s.

                Prove me wrong … show me the Democrats that switched compared to those who stayed. EVERYBODY knows it happened, it should be EASY!

                1. There is a KKK, and they vote Republican.

                  I didn’t say anything about an organized white supremacist organization (other than GOP voter suppression).

                  Official planks of the party is a hilariously off-topic metric for anything we’re talking about. Par for the course, since you prefer to argue irrelevancies you think you can win.

                  And then you go for moral preening.
                  You want some proof? Just look at the realignment of Southern votes.
                  Also, too: https://www.tandfonline.com/doi/abs/10.1080/21565503.2012.758593

                  1. Realignment of Southern votes, like Virginia and North Carolina (and soon Georgia?) turning blue?

                    Despite the stupid Stars and Bars, patriotism runs quite high down south, hard to imagine them negatively reacting to the anti-American bent of the Democrat party since the 60’s, huh?

                    Being in the Bible-belt, strange to see them react negatively to the anti-Christian bent of the Democrat party, huh?

                    Rise above your prejudice.

                    Undeniable fact: As the south has become more Republican, it has also became less racist.

                    The Democrat party is STILL openly racist … they have just switch who they hate. I reject hate and so should you.

                    1. These are your people, Conspirators.

                      This is why strong law schools tend not to hire many movement conservatives . . . unless they wish to become weak law schools.

                    2. You don’t think the realignment of states like Virginia and sometimes North Carolina and soon Georgia has to do with demographic changes (i.e., native born southern whites having less and less power in those states)?

                      Southern black voters are just as Christian as Southern white voters and yet they predominantly vote Democratic. So religion is not the differentiator.

                      Are you suggesting southern black voters are less patriotic than southern white voters? I assume you are not a racist and so your answer is no. So that’s not the reason.

                      Undeniable fact: As the south has become more Republican, it has also became less racist. And, yet, North Carolina Republicans were caught explicitly targeting black voters for efforts at voter suppression. In which party do current-day white racists find a home?

                      I reject hate and so should you.

                      I am glad to hear that, so I assume you are against the vilification of Muslims, undocumented immigrants, and support rigorous defense of the VRA (particularly in light of abuses like those with which the NC GOP tried to get away). I am definitely against hate, which is precisely why I notice when GOP supporters walk around chanting “Jews will not replace us” and the GOP President calls them very fine people.

                  2. The Klan was a DEM outfit — right on down to Robert Byrd, D-WV.

                    1. It was. And now they are Republicans. As you know, Byrd repudiated those views. He wouldn’t have survived in the Democratic Party if he did not. Meanwhile, Jesse Helms……

                  3. Even the Southern Poverty Libel Center concedes there is little active Klan and the people out there who identify as “Klan” are just a mishmash of splinter groups.

                    The kool-aid must be really good tonight Sarc.

                    1. It’s not Democrats who are defending the Confederate flag.

                      It’s not Democrats who are trying to suppress the black vote.

                      It’s not Democrats who were chanting “Jews will not replace us” in Charlottesville.

                      It’s not a Democratic President calling those chanters “very fine people.”

                      Steve King is not a Democrat.

                      Nor, beginning around the 70s, were Jesse Helms or Strom Thurmond.

                      While certainly not all Republicans are racist, very nearly all white racists are Republicans. That’s just a fact.

                      Maybe Republicans should be less welcoming to the racists? You know, repudiate the Southern Strategy.

                2. There is no fucking Klan today and the idea that there is any organized white supremacist organization with any semblance of power

                  You mean, other than the Trump administration?

            2. You need to and see which ones lived past 1975 and yet remained Republicans. And the segregationists that stayed viable in politics are nearly exclusively Republican and include Senators Strom Thurmond (who had the decency to admit he was wrong, though Trent Lott thought maybe not) and Jesse Helms who never withdrew his overt, passionate support of segregation. He just became less vocal about it, but he never said he was wrong or regretted his pro-segregation posturing.

              Then revise your middle school book report accordingly.

              1. WOOSH … goal posts moving!!!!

                I accept your admission that they remained Democrats for the rest of their lives. You will also note the the states they came from did not START becoming controlled by the GOP until those old folks started dying in the 1990s.

                Funny how when Thurmond became a Republican, he started voting to renew the CRA each time, eh?

                PS: FUCK Jesse Helms the racist POS. Yet, he did more to fight slavery in Africa than Barak Obama did … just damn!

                1. DWB,

                  You set the goalposts, which I reject as irrelevant to the question of whether the actual voters as well as the type of voters who supported racist Southern Democrats in 1964 changed parties due to the Republicans actively courting them and the Democratic Party repudiating segregation and embracing equality.

                  Most of the signatories were dead by the end of the 70s, during a time the parties were changing. What party they died in is irrelevant, except to the extent they lived to a time when the parties realigned. Those that did and did not repudiate their view (and new Senators who were segregationists like Helms) changed their party (Helms prior to becoming a Senator, but the switch was for an obvious reason).

                  And let’s review:

                  You admit party-switching GOP Senator Helms was a racist POS, yet he was embraced by the GOP and very powerful within it.

                  Strom Thurmond never fully renounced his views and (Dixiecrat and all) was one of the most prominent pro-segregation Senators and he switched parties.

                  That’s two pro-segregation Senators who remained unrepentant re segregation into the 90s and they switched from Democrat to Republican.

                  Meanwhile, Robert Byrd stayed in the Democratic Party, but (unlike Thurmond) repudiated his former views in the 1970s when the realignment was occurring.

                  And for good measure, Harry Byrd became an Independent and voted against reauthorization of the 1965 Voting Rights Act (in the early 80s).

                  For your theory to work, you have to believe that southern white voters had a major racial reawakening such that they suddenly became non-racist and pro-equal voting rights and pro-equal opportunity and that’s why the southern white voters switched parties.

                  While holding on to that fanciful belief, you also have to hold an explicitly racist view that southern black voters are dumber than the newly non-racist southern white voters because they consistently vote for the new Democrats and against the new Republicans. So do you hold that racist view or do you admit your theory does not account for the fact of black voting patterns?

                  And, on top of that, you make much of Strom voting to renew the CRA, I think you mean the VRA. He did vote for reauthorization of the VRA in the early 80s, but only on the final vote. Also, who voted against it: The admittedly racist GOP Senator Helms, Independent Harry Byrd (why did he leave the Democratic Party in the 70s/early 80s and become Independent while still opposing equal voting rights?), and six other Republicans….including two more Southern Republican Senators. Why did only Republicans oppose the VRA in 1983? Do you even entertain the possibility that the GOP had become the preferred party of racists (like Helms)?

                  If not, why not? Because Lincoln was a Republican in 1865? Really?

              2. NOVA — can you say “Robert Byrd”?

                1. Robert Byrd remained a Democrat and fully renounced his segregationist views as well as his former KKK membership.

                  Meanwhile, Harry Byrd did not and became an Independent.

                  Strom Thurmond did not repudiate his segregationist views and became a Republican.

                  Jesse Helms did not repudiate his segregationist views and became a Republican.

                  I am not going to defend Byrd as a fully changed and enlightened man (feel free to think whatever you want), but don’t you find it significant that, at a bare minimum, he had to pretend to be a repentant and fully reformed man to remain in good standing the Democratic Party in the 80s, 90s, and 00s, whereas Thurmond and Helms didn’t have to repudiate their segregationist views to maintain senior leadership positions in the GOP?

                  And, Ed, what is your non-racist explanation for the fact that southern black voters became reliable Democratic voters in the 1960s and 1970s? You don’t think they noticed which party supported racial equality and which stood against it (or at least welcomed those who did, like Thurmond and Helms)?

    2. Interesting, although I blame Castro for JFK.

      1. Are you sure it wasn’t Lyin’ Ted’s father?

        Why spend the days you have remaining before replacement in this manner, Dr. Ed? What precipitated your hatred for modern America?

  8. Well, the thin line between Hollywood ‘bowing’ to China, and Hollywood just being communist is getting thinner and thinner.

  9. But, of course, the film industry isn’t kowtowing to Progressives and Cancel Culture. Nope. Not at all. Nosiree.

    1. You think it is?

      You ever seen NCIS: Los Angeles? Or Jack Ryan? Or 24? Or The Man in the High Castle?

      Hollywood, for all it’s rhetoric, goes where the money is.

    2. It must be dizzyingly difficult for conservatives to understand how the liberal-libertarian mainstream has all of the good music, the best movies, the best comedians, the good television shows, the best directors, the best actors, the best . . . well, everything, unless your idea of entertainment heaven is Blue Bloods, Greg Gutfeld, the Left Behind films, Kenny Chesney, Walker Texas Ranger, Jeff Foxworthy, Hank Williams (the Lesser), Jim Gaffigan, Scott Baio, Kid Rock, Duck Dynasty, and Antonio Sabato Jr.

      1. Aside from our definition of “best” having deviated before you were born, the fact that you know what construes pseudo conservative entertainment is hilarious.

        That said I will take your estimation of entertainment for conservatives as a high water mark of your intelligence,

        1. Country music, faith-based films, third-rate comedians, Fox’s late-night comedic fare, a few old-timey television programs . . . which part of the conservative entertainment palette have I missed?

          Oh, I forgot . . . NASCAR. But if NASCAR sticks to the no-Confederate-flag sellout, clingers will abandon car races (Hot Wheels for ostensible adults) soon enough.

          1. Do you just play an ignorant liberal on the internet or are you actually one in real life too?

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Free Speech

Partial Pseudonymity of an Appellate Decision

Good idea? Bad?

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I wonder what people think about this: M.M. v. M.S. is a nonprecedential California appellate decision from last Wednesday, involving a lawsuit about alleged invasion of privacy in medical records. (My sense from my quick research is that the medical record was a medical marijuana card.)

Now keeping a case fully pseudonymous, with the parties name unavailable in the court files, is generally viewed by our legal system as a fairly substantial step, requiring some justification—a mild form of sealing of court documents. I think California courts are more open to this than some other courts, but even so pseudonymity is the exception rather than the rule, even though civil defendants, criminal defendants, and even plaintiffs would often prefer not to have their names appear in court decisions.

But here the pseudonymity seems to be present only in the court's opinion. The appellate and trial court dockets, which one can find using the case numbers given in the opinion, contain the parties' full names.

Anyone who really wants to research the case can easily find the names, and can find the local newspaper story from 2017, when the lawsuit was filed. So the public's interest in being able to monitor what courts are doing seems to be largely unimpaired; but the parties' privacy is protected—or, if you prefer, it becomes harder for the parties' future employers, business partners, neighbors, or lovers to learn this information by Googling for the parties' names.

Should we like this? Dislike it?

Does the existence of the article in the local newspaper affect your analysis? Note that there was no follow-up article about the appellate decision in the local paper; I'm not sure if that's because the newspaper hasn't gotten to it yet, doesn't find the appellate decision as newsworthy as the initial filing, or hasn't learned about the case.

Note also that the plaintiff appears to have been involved as an officer in a local political organization, and the defendants were a former city councilman and a local political activist.

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  1. I’m mixed on this one. On the one hand, we’re dealing with a court case and information on people. You can add voters to that list. On the other hand, we’re dealing with an invasion of privacy case/HIPA and the use of pseudonyms helps preserve privacy (not much in this case, but some). Maybe only give anonymity when the case is about a privacy violation in order to stem further violations?

  2. I’m more and more an absolutist on public legal proceedings. The public is the ultimate enforcer of verdicts, and the more legal proceedings are hidden, the less interest the public has in accepting them.

    If the legal system provides justice, then each case assigns winners and losers fairly; losers should have been able to predict their loss, and gain no sympathy from me for their embarrassing loss. If the legal system is corrupt and unfair, that itself needs to be public knowledge.

    Passwords and account numbers? If they are evidence of wrong-doing, they are presumably no longer valid. Redacting children’s names but not their parents is no hurdle; the publicity at the time will linger on forever. I sympathize with crime victims who want the gory details secret so they don’t have to relive the memory, and it really is nobody’s business — except if you want me to judge your criminal’s guilt, I am not going to take your word for it that he did something unspecified bad. Crime disrupts everything — the criminal’s family, friends, and employer suffer too, as do the taxpayers who have to support prisons and police and prosecutors. Your embarrassment does not take priority.

    1. The problem with this analysis is that you can win your legal case yet still be a net loser if the adverse publicity is worse than whatever the court can award you from the loser. That leads to a situation where potential winners self-censor and choose to not bring good cases out of fear and bad guys are left unaccountable.

      I’m not saying that automatically outweighs your concerns about openness and transparency. But it’s a complicating factor that needs to be measured against your other valid goals. It argues against absolute rules.

      re: passwords and account numbers? No you can’t make the presumption at all. There are many scenarios where it will make sense to leave the account live even though it’s mentioned in litigation. There is, however, zero value to those data elements when evaluating the fairness of the judicial process. Redacting them is easy and uncontroversial.

      1. If the bad guys already know your credentials, it behooves you to change them anyway, long before even the investigation gets very far, let alone the court case. Yes, redacting them is easy, but so is numbering pages in reverse. It has no benefits.

        1. If you’re talking about your personal bank account password in a hacker’s hands, absolutely you should change it. And you should change every other account that used the same password – if you can remember them all. But if you’re talking about the access credentials hard-coded into a mainframe system built in the 1980s and “exposed” only because they were mentioned in passing during a deposition, well, the calculation is quite a bit different. There’s no reason to not redact a password.

          1. No. The bad guys, the criminals, already have those credentials, and if you haven’t changed them, you are a damned fool.

            There is zero excuse for retaining stolen credentials, and zero excuse for redacting stolen credentials.

            1. You are assuming rather a lot of facts not in evidence and apparently not bothering to read my post. Credentials can show up in a court document without ever having been “stolen” by a bad guy. You may think leaving the credentials unchanged is a bad idea (and I would generally agree with you) but going from disclosure to a couple officers of the court to public disclosure everywhere is not responsible. There is zero excuse for not redacting passwords in court documents.

      2. And just as crime has repercussions far beyond the actual value to the criminal, so does punishing crime. Alleged criminals deserve a fair shake; that is why we have trials. If the victim decides the embarrassment and humiliation, or reliving the crime, is not worth punishing the criminal or getting restitution, that is their decision; but reducing the fairness of the trial, or making it harder for the public to know what they are implicitly enforcing, cannot be part of the bargain.

  3. I’m okay with this. It seems to be a nod to the pervasiveness of access now that is more than has existed in the past. Sort of like how the Supreme Court periodically “resets” search and seizure law to account for significant changes in technology. The parties aren’t hidden but have to be specifically looked for instead of turning up on the first Google hit. Seems reasonable.

  4. I am more bothered with “nonprecedential” California appellate decision.

    Common law system reliess on citation to prior cases. Defeats the entire structure if others cannot cite and rely on a decision.

    Names don’t matter. MS or Martha Smith. Irrelevant either way.

    1. It is nice to avoid cluttering up case law with redundant opinions. Just because someone appeals, that doesn’t mean they are going to create unique case law.

    2. “MS or Martha Smith. Irrelevant either way.”

      Why make this about Babs?

  5. Pseudonymous references in high-profile documents, coupled with real names in low-profile documents, strikes me as pretty common practice.

    In many criminal cases in my jurisdiction, the alleged victim is made pseudonymous in the complaint, and in the appellate court’s recitation of the facts. But that person’s actual name will appear on the public witness lists, jury instructions, and other documents openly accessible in the trial court’s file. And the actual name will be used in the proceedings, for which unredacted transcripts are produced and filed with both the trial and appellate courts.

  6. Doesn’t bother me. We all know who Jane Roe was, but we still cite the case as Roe v. Wade.

  7. Some years ago I tried a case involving breach of confidentiality by my client (a medical practice). Privacy seemed a graver matter to the appellate court than it did to my adversary or to the trial judge. The client’s full name was on the caption, and the trial judge kept it that way in all the decisions he issued, but on appeal of the verdict the appellate court freaked out, ruled against me on flimsy grounds, and anonymized the plaintiff’s name which is how she appears in the official reports. Of course my client’s name stayed the way it was.

    1. That seems- not that much of a comfort.

      1. The appellate court issued a virtue-signaling opinion on the importance of confidentiality and the need for punitive damages even though it all but admitted that simple, one-time negligence was involved, and I suppose to be consistent in their grandstanding they had to anonymize.

  8. Does doxxing the parties to the case have any impact on the opinion?

    I think the answer is no. So, I don’t think there is a reason to do it.

    Especially when the issue is medical records.

    In general, privacy is very valuable and we do not have enough of it in America.

  9. The answer is no. Not only should the bar be high to rebut the presumption of public access, but restricting access through sealing or pseudonymity must be effective. If it cannot be effective because of publicly available information already available then efforts to restrict access must be abandoned, except in rare circumstances of which this does not seem to be one.

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Libel

Lex Loci Delicti, not Praetor Peregrinus

Or, Virginia is for lovers, not libel tourists.

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From Judge David Oblon's last week in Mireskandari v. Daily Mail & General Trust PLC:

In this defamation case, a United Kingdom … news publication allegedly defamed a UK [lawyer] practicing in the UK at a UK law firm, involving actions that occurred in the UK, through news stories of parochial interest to UK readers, to gain favor with UK police. The distilled question before the Court is, why is this case in Fairfax, Virginia, USA? The legal question is, can the Court properly exercise personal jurisdiction over the UK Defendants under Virginia's Long Arm Statute and the Due Process Clause of the United Stales Constitution?

[No, says the court, for various reasons, and adds:]

Fairfax County, Virginia, USA, Is Not The World's Defamation Court.

Some may have misread the Johnny Depp v. Amber Heard Opinion Letter, wherein another judge of this Court held Virginia was the proper forum for actor Johnny Depp's defamation suit against his ex-wife, actress Amber Heard, despite the seemingly thin connection of the parties and the cause of action to Virginia.

For starters, the issue in Depp was of forum non conveniens and venue—not in personam jurisdiction. Nevertheless, any jurisdictional or locational ruling in Depp expressed a limiting principle, not an expansive invitation to forum shop in Fairfax County. The Court held under the lex loci delicti rule that the cause of action in a defamation case arises where the last act for publishing the allegedly defamatory statement took place. In Depp, the last act was when The Washington Post uploaded the statement in an article to the Internet from servers located in Virginia. Stated differently, Depp stands for the principle that Virginia is one of the few places where that defamation action may be adjudicated.

The logical extension of Depp is that the Daily Mail case may be brought where the last link of the publication of the defamatory statements occurred. If that last link was in Virginia, Mr. Mireskandari has not realistically pled that. Merely being accessible is not synonymous with where something is published. Although in paragraph 14, Plaintiff avers Daily Mail "published" the defamatory articles in Virginia, that statement is belied by the rest of the Amended Complaint. Defendants are UK companies operating a UK news publication. And even assuming the place of publication is where the article was first uploaded onto a server, Mr. Mireskandari has not pled that Virginia was the place….

The only real similarity between Depp and this case is that Virginians sitting in Virginia can access both The Washington Post and Daily Mail online. The differences are remarkable: The Washington Post is a US company with offices in Virginia, is printed in Virginia, and its digital platform is created and routed through servers in Virginia. Conversely, Daily Mail is a UK company and has the "'.co.uk" web address of UK domains. Unlike in Depp where the alleged defamatory op-ed was first printed and/or uploaded in Virginia, Mr. Mireskandari has not alleged the Daily Mail's alleged defamatory article was first published in Virginia, as opposed to elsewhere, such as the UK….

The Circuit Court of Fairfax does not sit as praetor peregrinus. {In ancient Rome, a praetor was a judicial officer, who generally handled matters of equity. A praetor urbanus was an arbiter over disputes between citizens; a praetor peregrinus handled suits in which one or both parties were foreigners.} Daily Mail's Motion to Dismiss is granted….

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  1. Why did they even want to bring the case in a U.S. court? My impression is that UK defamation law is much more favorable to the plaintiff.

    1. Not as much as it used to be, but yes.

      I can think of only two reasons:
      1. Plaintiff is hoping to get some kind of massive punitive damages award.
      2. Plaintiff is thinking about the key factual basis at issue in the case, the alleged unlawful access to his records in the National Student Clearinghouse, which is in Virginia. But presumably a California court could have sorted that out just as easily, and an English court may well have been able to as well.

      1. Maybe he didn’t want to draw the attention of UK courts to it for personal or professional reasons?

        1. Given that he seemed to be resident in California, I’m having trouble understanding how that would work. But then again, I’m having trouble understanding many aspects of the plaintiff’s case…

    2. I can think of several reasons beyond what Martinned said:
      * In England and Wales, the loser pays costs (and this suit is a loser there). The nuisance value of a suit is much greater in Virginia.
      * An English court is perhaps more likely to take judicial notice of previous determinations surrounding these allegations (e.g. the disciplinary tribunal that struck him off as a solicitor, the appeal where the judge described his conduct as “wholly abusive, unreasonable and manipulative,” etc).
      * English damages for defamation are much limited (even aside from punitive damages). You will not get millions in damages for being called a “bogus solicitor” when you’ve already been struck off for 104 counts of ethical breaches, and convicted of 15 counts of telemarketing fraud. Maybe in Virginia you might?
      * Perhaps a judgement in Virginia is worth more to him. He was ordered to pay millions in legal fees, sued for misconduct by previous clients, etc. He may be able to see more of the proceeds from a judgement in Virginia than in England & Wales.

    3. Google the plaintiff: he seems to be a vexatious who has had bad luck in California federal courts, and has been ordered to pay up under California’s anti-SLAPP statute. Virginia is a relatively attractive defamation forum in the US because it doesn’t have an anti-SLAPP law (part of why Devin Nunes, for instance, files his frivolous suits against fictional cows there).

  2. On the other hand, some places are a libel void.

    New York is one of several states that have no long arm statute for defamation. A UK citizen can stand for a few minutes on the tarmac at JFK Airport, libel a New York resident in a way that destroys her career, and she would have to go to the UK to sue him.

  3. Maybe this particular case shouldn’t be heard in Fairfax County, but I would note that I found that the Daily Mail provided much better coverage of the shooting of John Geer by Fairfax County police than the Washington Post (ostensibly the local paper) did.

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Right of Access

Can't Seal Court Files Just to Keep Them from One's Current Employer

or from one's house of worship or from the nursing board.

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From Abdul-Haqq v. Kaiser Foundation Hospitals, decided Wednesday by Judge Phyllis J. Hamilton (N.D. Cal.):

Years ago, plaintiff filed Kaiser I and Kaiser II as actions for employment discrimination against the various medical organizations named above. Ultimately, the court dismissed both actions with prejudice and entered judgment against plaintiff. The court terminated Kaiser I on April 10, 2015 and Kaiser II on May 1, 2017…. [P]laintiff [now] asks the court to seal her "case file," which the court understands to mean all records publicly accessible on each action's docket.

Plaintiff contends that a third-party, … who is the significant other of plaintiff's former significant other, … has "taken the information that is available online which has some of [plaintiff's] medical diagnosis and has harass[e]d, threatened, [and] taunted [plaintiff] to improperly disclose [the subject] records." …

The court rejected the request, for the usual reason that court files are presumptively open; but I found this passage noteworthy:

Plaintiff principally asserts that "Smith has made it clear that she will send information to my employment … and my place of worship for the gratification of public scandal, to circulate libelous statements, and to cause financial harm." … [But] plaintiff fails to explain why any "disclosure" by Smith of the subject records to plaintiff's job, house of worship, or nursing board would be improper. The contents of the filings in this action speak for themselves and, in any event, have long been publicly available to the above referenced institutions in the first instance.

I think this is right, and important. It's true that the mere fact that the filings are "publicly available" to plaintiff's employer or others doesn't mean that the employer actually saw them. But it does mean that they are something that everyone, including the employer, is entitled to see. That Abdul-Haqq wants to keep that information from her employer, house of worship, and nursing board doesn't mean that she is entitled to do so, or to enlist the courts in helping her do so.

Today in Supreme Court History

Today in Supreme Court History: August 4, 1961

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8/4/1961: President Barack Obama's birthday. He would appoint two Justices to the Supreme Court: Sonia Sotomayor and Elena Kagan.

President Obama's appointees to the Supreme Court

Campus Free Speech

Extramural Speech at Auburn

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Auburn University is currently struggling to stick to its principles on free expression. Hopefully they will get it right in the end, but it shouldn't be this hard.

Jesse Goldberg was hired as an adjunct to teach English classes starting this Fall at Auburn. His area of scholarly expertise, as he characterizes it, is in Black studies and critical prison studies. Unsurprisingly, he has thoughts about our current situation after the killing of George Floyd, the resurgence of the Black Lives Matter movement, and high-profile incidents of violence both by and against the police. Those thoughts included a tweet saying "F*ck every single cop. Every single one," and denouncing police as the violent agents of capital. (Alas his remarks were amplified by Donald Trump Jr. who warned that the "egg heads" are "gunning for middle America.")

One need not agree with either the substance or the style of Goldberg's tweet to recognize that this is a commonplace example of free expression on social media. Such speech is constitutionally protected against governmental suppression or sanction. It is also well within the bounds of what the American Association of University Professors has long characterized as "extramural speech" protected by principles of academic freedom.

I have written elsewhere that such private political speech should probably not be thought of as the kind of speech directly implicated by principles of academic freedom (which are primarily concerned with scholarly teaching and research), but it should nonetheless be protected from university sanctions as a prophylactic measure to preserve freedom of thought and discussion on college campuses.

This is a prime example of why. Goldberg's teaching and scholarship are closely connected to the substantive content of his tweet. Hopefully he expresses himself differently in those contexts, but seeking to punish him for the ideas conveyed by his tweet would inevitably have consequences for the arguments that professors think they can safely make in the classroom or in their scholarship. Free scholarly inquiry at Auburn would be damaged if the university caved in to the American president's son and took action against an instructor for his public political speech. It is all the more alarming that a state legislator who sits on the education committee would publicly demand that Goldberg be "fired before the sun sets today!"

Political speech in the public square is often crude, passionate, and mistaken, but life in a democracy is sometimes messy and we should strive to tolerate our fellow citizens' coarsely expressed political opinions. Universities in particular should model such tolerance precisely because universities are important sites for public debate about matters of general concern.

College campuses would be less interesting, less useful, less democratic places if college administrators sought to punish members of the campus community for saying things in public that offend alumni, donors, and local politicians. College administrators have a duty to tell such offended members of the community, both on and off campus, that universities are places where people of many different political and social views come together to examine and debate ideas. If no one is offended by anything anyone says on a college campus, then it is probably a pretty lifeless campus.

So far the Auburn administrators are not performing their duty very well. The university should have issued a simple statement noting that no individual member of the campus community speaks for the university as a whole or as an institution, but all the members of the campus community are given the right to speak their mind about matters of public concern and using the language and rhetoric that they think are most appropriate to the task. It did not do so.

Instead, Auburn told Breitbart that this was an example of "hate speech" and released a statement:

As stated earlier this week, Mr. Goldberg's comments on social media are inexcusable and completely antithetical to the Auburn Creed. Higher education is built upon the premise of the free expression of ideas and academic dialogue, but Auburn has not and will never support views that exclude or disrespect others, including hateful speech that degrades law enforcement professionals. Mr. Goldberg was hired on a temporary, non-tenure-track assignment.

Auburn said it was "considering options available to the university" about what to do about the fact that someone said something wrong on the Internet.

Unfortunately, because Goldberg is off the tenure track, he is particularly vulnerable to university reprisal. Tenure and tenure-track faculty can often ride out such public controversies, but contingent faculty are all-too-often terminated, sometimes in the middle of the semester, even though their speech is equally protected by the principles to which universities have committed themselves. Fortunately, FIRE, an exemplary civil liberties organization, has reminded Auburn of the relevant principles in this case and the chilling effect that public consideration of "options" can have on the intellectual climate of a college campus.

The specifics of Auburn's statement are also worth noticing. It is no accident that Auburn officials were quick to denounce Goldberg's tweet as "hate speech." The "hate speech is not free speech" crowd should once again pay attention to how that sentiment can and will be used. If you think that only the "right people" will be sanctioned by hate speech policies, you have not been paying attention.

Auburn also adds the institutionally specific notion that Goldberg's tweet was "antithetical to the Auburn Creed." There is such a thing. You can read it here. It is . . . interesting. It is also in some tension with the core mission of a university to foster the fearless pursuit of the truth. There are plenty of folks who would like to see secular universities adopt creedal commitments. As Josh Blackman noted the other day in the context of Ohio State's desire that faculty pledge themselves to "Buckeye values," even nebulous, feel-good value statements can be converted into political litmus tests. Universities should not be in the business of requiring and enforcing such political pledges. They certainly should not be threatening to take action against instructors who say something at odds with the value statements that university administrators have endorsed.

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  1. As an adjunct professor, I fail to see what the issue is.

    I couldn’t say similar things about Obama. and what’s the difference….

    1. No one’s saying it isn’t cosmic just desserts for cancel culture people to themselves get cancelled. This is the world they built.

      Still, it should not happen in either case.

      1. The Hypothetical Hypocrisy(TM) card played again.

  2. On one hand, I sympathize with the professor, and, indeed, all folk who get fired for the stupid things they say online.

    On the other, I think about my hypothetical comic book shop. If one of my employees goes on a racist/homophobic/sexist rant on Twitter or Facebook or whatever and it’s brought to my attention, I absolutely think it’s fair game for me to call them and say “don’t bother showing up on Monday”.

    And that’s ultimately what we, as a culture, need to decide on. Are we all obligated to ignore what our employees say online? Or is it fair for us to say “I don’t want to pay that person to be near me”?

    We haven’t settled on an answer yet. I suspect we won’t for a long time.

    1. Private employers aren’t subject to the same legal limits on employee punishment as government employers are.

      1. I’d have to double check this specific university to be sure, but most university employees, even the employees of state universities, are not considered government employees.

        Regardless though, that’s at best a legalese distinction, not an ethical distinction.

      2. That’s interesting, so professors at public colleges can lead their class in a prayer at the opening of every class?

    2. Auburn is a state university.

    3. The mission of comic book stores, real and hypothetical ones, bear little resemblance to the mission of universities, even the ones far down on the food chain. Hence, there are different expectations of comic book store employees and university faculty.

  3. Maybe he should be but cut for being in a worthless discipline.

    1. “Jesse’s scholarship and teaching broadly fall within the triangulation of Black studies, critical prison studies, and queer & feminist theory with an emphasis on the methodologies of literary and performance studies.”

      I don’t think I even want to know….

      1. You obviously don’t want to know. Self-imposed ignorance is an inalienable right.

        1. Each and everyone of us is ignorant.

    2. And who should be the arbiter of what disciplines are of value? Should we get a gold star panel of straight, white wealthy men and have them decide? Universities have a mission to probe the edges of what we know in many disciplines and we need to let the scholarship and data take us to better knowledge. That is how we make progress.

      1. Whoever is the arbiter, there has to be one, or else you’re going to get “drinking beer and eating Cheetos” studies departments.

        1. The market seems to be handling this, rewarding strong schools while tolerating lesser schools.

          (That the strong schools are liberal-libertarian institutions, while conservative-controlled schools are education’s flotsam and jetsam, makes right-wingers cranky.)

          1. Higher education is far from a free market.

            Employers require degrees because they are a convenient litmus test. Let companies do aptitude testing again and watch this requirement disappear.

            Also get rid of student loans (along with other public subsidies) and see how many people sign up for 75K degrees. My guess is over the next four years you will see a 50% drop in attendance if not higher.

            1. Whether we should continue to subsidize higher education is an issue quite collateral to the merits of this firing.

              1. Not entirely, no, because it’s extremely unlikely this dude would have had the job in the first place, if higher education weren’t subsidized to the point where they could afford to carry a lot of dead weight.

                1. Which means we don’t need to care about his speech because you don’t think his job should exist.

                  No, that’s not good logic. You should still get free speech even if Brett doesn’t like what you study.

              2. No the questions really go hand-in-hand. It is natural to think – why is this a-hole in higher education saying that? And then naturally ask why is this a-hole even someone higher education employs in the first place.

                Answering – it is liberal thought reform parading as a legitimate academic discipline and a university should not be engaging in that type of shill – is a natural conclusion to the second question.

                Firing the guy because of what he says is not conducive in addressing the first question. But realizing you should just get rid of all those these a-holes and you don’t have the problem structurally is fine though.

                But yeah it does beg the question – should higher education be employing such people and if so should the public be subsidizing it?

                1. You’re just talking around the issue of whether he should be fired for his speech.

                  I get that you don’t care for the direction free inquiry has lead academia. That you don’t like his job does not have any bearing on what free speech this guy should get.

                  1. As I said, it isn’t OK to fire the guy for his speech. That is a given.

                    But, the fact that guy shouldn’t be fired, doesn’t mean you can’t ask the question – why is this a-hole here in the first place?

                    I would suggest though that if you care about the guy’s free speech rights you talk to your fellow travellers about their general concerns about free speech. I don’t think you will find many people on the right who really care because it is just plain hilarious when a liberal gets eaten by their own.

                    1. So then the question does not go hand in hand with anything, and may be independently answered. Glad we got that cleared up!

                      You can ask the question, but as my comment below indicates, you need to do better than insisting this is dumb.

                      I am aware that there are some on the left that take the paradox of intolerance and use it to blow up free speech principles or even rights. So what? That doesn’t mean you shouldn’t care about their free speech.

                      In fact, if your dislike of liberals’ thinking about freedom of speech makes you care less about their freedom of speech you don’t get to pretend to have the high ground, because you’re just as bad as them.

                      Police your biases, don’t lean into them.

                    2. It does limit my capacity to care. If someone asked me I would give them my opinion (don’t fire the guy because of what he said), but other than that I don’t have time to care. Part of that equation is that there is no reason to really care. Years ago I probably would have cared more, when caring actually meant something. I was one of the few people sitting in the board room who would speak up against firing a guy who was outted as a homosexual or was diagnosed with AIDS (back when those were cultural morays.) That used to matter more because we had actual political and cultural norms. Now the Left has pretty much trashed those so my level of caring is next to nothing.

                      And I assume there is no merit in a black feminist critical theory queer studies instructor because there is simply no merit in such a position.

                    3. Don’t blame the left if you once had empathy and now you don’t. That’s on you.

                    4. No I can blame the Left because all the cultural damage done in the last 30 years can be traced back to them (or at least 90% of it.)

                    5. Cultural damage?

                      You mean gays no longer treated like dirt?

                      Drunken drivers and wife beaters punished rather than appeased?

                      Too many blacks getting elected?

                      Too many women in graduate schools?

                      Fairy tales kicked out of science classrooms?

                      Too many blacks voting?

                      Stomping conservatives’ preferences in the culture war has been fun and important.

                  2. “I get that you don’t care for the direction free inquiry has lead academia.”

                    That’s the whole point, it’s not free. If you’re such a fan of free inquiry, let’s stop paying the academics and let them inquire for free, no?

      2. I love the defense “you don’t understand the value!” of these worthless “academic” disciplines.

        Yes, yes, I do understand. They are useless. Produce no meaningful scholarship. And are just used as left wing indoctrination.

        1. They can’t all be Regents, Libertys, and Wheatons, Jimmy.

          1. I would ask you how that is, in any way, a defense of the worth of these academically questionable “academic” disciplines, but your education appears to be orders of magnitude worse than what you might have received at “Regents, Libertys, and Wheatons”, so I expect this is the best you’ve got.

            What if the “Regents, Libertys, and Wheatons” start teaching “Gender Studies” will you denounce them?

            1. I gather Regent, Liberty, and Wheaton do not feature the ‘academically questionable’ areas of study ‘used as left wing indoctrination’ to which some Conspiracy fans object.

              My point is that not all of our academic institutions can be the schools Conspiracy fans prefer — such as Regent, Liberty, and Wheaton. Some schools can’t quite reach that level.

              There is only so far some can stoop . . .

      3. “Should we get a gold star panel of straight, white wealthy men and have them decide?”

        Yes.

        Emphasis on “wealthy” because that is what academia has always been — what people of means have been willing to fund, both personally and through their taxes (including church taxes).

        Your concept of “better knowledge” is the trap of Cold War thinking and our current emphasis on research is a legacy of the 50 years (1941-1991) when academia was largely an arm of the DOD.

        The term “university” comes from the concept that there is a universal knowledge of humanity and that it should be presented to young people as a gift — funded by the wealthy. And that it largely represented the mainstream of social and cultural views, not the extremes.

        Was the Biblical Tower of Babbel “progress”?

        1. Only Dr. Ed, and maybe Brett, know what “progress” is.

          our current emphasis on research is a legacy of the 50 years (1941-1991) when academia was largely an arm of the DOD.

          The emphasis on research has served the country extremely well, whatever its motivation. You’re simply asking that schools devote themselves to teaching orthodox views of society without being willing to accept challenges to that orthodoxy.

          That’s a recipe for decay.

          The term “university” comes from the concept that there is a universal knowledge of humanity and that it should be presented to young people as a gift — funded by the wealthy. And that it largely represented the mainstream of social and cultural views, not the extremes.

          Bullshit. What you’re saying is that the university shouldn’t try to expand knowledge, which is idiotic.

          1. Ir’d be nice if they expand knowledge and not idiotic theories backed up by nothing that seems to be little more than ways to keep unemployable people with jobs.

            1. idiotic theories backed up by nothing

              You mean like creationism and tax cuts that pay for themselves?

              That kind of idiotic theory?

      4. “That is how we make progress.”

        Nothing he studies is remotely connected to “progress”. Its three worthless things with an emphasis on [“methodologies of literary and performance studies”] jargon.

      5. That’s great. In order for it to work, the college has to be held accountable for their choices
        A great way to hold administrators accountable for teaching ” queer & feminist theory with an emphasis on the methodologies of literary and performance studies.”
        A quick and easy solution is to make student debt dischargeable in bankruptcy. Meaning colleges would have tuition clawed back in a bankruptcy. Turning out productive graduates should be the first 10 priorities of colleges.

  4. The free speech point is well taken, but Auburn wouldn’t be in this position if they simply threw all the grievance studies nonsense off their campus. They don’t teach phrenology or astrology right?
    https://quillette.com/2018/10/01/the-grievance-studies-scandal-five-academics-respond/?

    1. Perhaps not astrology, but just as good.

      1. You mean like Harvard and Yale?

        1. Nobody’s perfect.

          The trick is usually choosing the excellent or good rather than the shambling or worse.

      2. Artie, have you ever made a coherent argument? Or an argument that can’t just be boiled down to “conservative bad”?

        1. Half of my general argument is ‘liberal-libertarian mainstream good’ and the other, corresponding, half is ‘dwindling conservative fringe bad.’

          It’s a divide, Vinni.

          On one side, reason, science, tolerance, modernity, progress, inclusiveness, merit, and the like.

          On the other, superstition, dogma, bigotry, insularity, backwardness, unearned privilege, and the like.

          Every preferable, good point is positioned against a corresponding lesser point. I prefer the better, current America. My argument is that it is the better America.

      3. “Reverend” (what faith?), were you troubled to see no mention of Islam among the religious studies courses?

    2. The “professor” shouldn’t be fired over this or almost any tweet. But the Alabama state legislature should investigate and remedy such a colossal waste of public resources that Auburn finds a need to employ someone who’s professional “triangulation” is Black Studies, Prison Studies, and Queer and feminist theory.

      Individuals should not be targeted for their speech. Whole departments should be rooted out for their general uselessness and waste of time and money.

      1. Yeah, the right doesn’t much care for the examination our culture.
        If it doesn’t make GDP go up, what use is it?

        Lets also eliminate art. And history. And English. Only STEM makes GDP go up enough to be worth it!

        Because schools don’t serve individuals, they do not inquire about things that make anyone uncomfortable; they exist purely to serve society. And they should only study and teach things that properly serve society, as defined by conservatives.

        I look forwards to a bright right-wing collectivist future!

        1. I caution against adopting the disaffected right-wing incel’s Asperger-influenced view of the world, Sarcastro.

          1. No more reason to include individuals with Asperger’s in a grouping you disapprove of than there would be to include others on the autism spectrum in that same grouping of yours. That is to say no reason at all to include any of them in your grouping.

            [BTW, do people know that Dr. Asperger participated in the Nazi program of “euthanizing” impaired children? That should be reason to stop honoring him with a neurologic eponym.]

        2. Yeah, the right doesn’t much care for the examination our culture.
          Our culture. The one that exists due to brave souls risking their lives in search of religious freedom? That culture? A nation founded by Christians? Not an atheistic colony in the group? A culture where Churches created the Universities and Hospitals? Religion was the center of knowledge, education and governance?

          1. Ah. So the culture we THOUGHT America had in the 1950s.

            Yeah, I can see how you wouldn’t want a close look at that.

            1. Ah. So the culture we THOUGHT America had in the 1950s.

              Just trying to get you to define “our” culture. Your terms you define ’em.

              1. Our culture contains multitudes. It’s the right that wants to ignore some parts of it.

                Do you think we lack for those studying Christianity in America?

              2. Your solution, iowantwo, is more childish superstition?

                Competent people neither accept nor advance superstition-based arguments in reasoned debate among adults, particularly with respect to public affairs.

                You are entitled to believe that fairy tales are true. You are not entitled to the respect if you attempt to impose your superstition on others in public affairs or public debates.

                (If you are 12 or younger, I withdraw my objection to your reliance on fairy tales.)

            2. 1950s culture? The culture that, after fighting a racist prick in Germany realized (through the revolution that was Rock n’ Roll) that we had a few to defeat here at home?

              THAT 1950’s culture?

              I swear the left’s understanding of history is a walking cliche. For people that imagine themselves deep thinkers they are as deep as a puddle.

              1. Thanks for making my point, chief.

                1. Look closer — you ARE my point.

                  Just damn.

                  Here is wisdom: “And why do you look at the speck in your brother’s eye, but do not consider the plank in your own eye? Or how can you say to your brother, ‘Let me remove the speck from your eye’; and look, a plank is in your own eye? Hypocrite! First remove the plank from your own eye, and then you will see clearly to remove the speck from your brother’s eye.”

                  LEARN!

                  1. I’m saying your view of the 1950s is distorted, as is iowantwo’s point about American culture being purely Christian.

                    You can quote Matthew all you want, but if you don’t back it up you’re just bloviating.

                    I’m for American cultural studies. In all it’s forms. Black, queer, literary, feminist, mythopoeic, sociological, and whatever else.

                    Y’all are trying to cut out a vast swath of it based only on it being nonsense and/or anti-American in your eyes.

                    So explain: what do I have wrong?

                    1. So explain: what do I have wrong?

                      I am happily married, I have neither the inclination nor the time to compile THAT list!

                      As the entire Raison d’être of the modern university is black, queer, literary, feminist, mythopoeic, sociological … and NOTHING else as anything “white,” “European,” Christian or anything that does not help the revolution (as of 9:39pm of course) is oppressive and must be eliminated.

                      The modern education system is just as oppressive, narrow-minded and fundamentalist as the strictest nun or snake-handling demagogue.

                      Hell, even Jerry Falwell became friends with Larry Flynt and would have an amicable lunch and debate with Al Sharpton — DAMN!

                    2. I’m saying your view of the 1950s is distorted, as is iowantwo’s point about American culture being purely Christian.
                      I never said American culture is purely Christian.
                      I said, it was Christians seeking religous freedom came to these soils and were the seed of the American Culture. Not an athiest colony was settled.

                      you claim that “queer and feminist theory” is part of the US culture, on par with our origins. Its not.
                      How many legs does a dog have if you call its tail a leg?
                      Nope. Still 4. Calling a tail a leg, does not make it so.

                    3. White is the default. It’s everywhere. Don’t even bother to talk about the varied origins of where the whites came from because default is enough.

                      English as taught in most schools is all dead white men. So is the default way history is still taught. Our mythopoea? Our Founders are all white. Our music is super-duper white (unless you care to study further). World War II? White-man’s war, it seems. Our philosophy? From Greece via Europe. We love us some Rome, ’cause that’s where Europe traces it’s roots.

                      Anthropological studies of the Bible abound. Testaments both Old and New, if you care to look. We also have schools of theology all over this land.

                      You really seem to be coming in in not well-armed for this discussion.

                    4. iowantwo – your revised thesis is getting sillier.

                      If you want to study how America was founded, you have many, many, many sources and scholars doing just that.

                      That doesn’t somehow mean it is invalid to study aspects of the culture of modern America

                      We have atheists in America today. Studying them is a useful endeavor.
                      We have women and gays in America, it is worthwhile to study their experience as well.

                      That one of our founding groups were puritan pilgrims doesn’t change any of that.

                    5. And the history of Zimbabwe is very black. The history of Israel, very Semitic. I am not even going to tell you what the focus of Japanese history is … your tender ears may not be able to handle it.

                      Stop being so damn racist dude.

                      Music is the universal language– keep your fucking racism away from it!

                      White is not MY default … I will leave it to your imagination to figure out why.

                      From a (now apparently horribly racist) song from the 1990’s group En Vogue:

                      “Free your mind and the rest will follow
                      Be color blind, don’t be so shallow.
                      Free your mind and the rest will follow
                      Be color blind, don’t be so shallow.”

    3. And what if an engineering professor, say, had tweeted out the same message?

      I think the reaction would be just the same. All the talk about how silly this area of study is has nothing whatsoever to do with whether the guy should be fired because of the tweet.

  5. The left has brought this on themselves. They label anything that disagrees with their orthodoxy as racist or hate-speech or both. As they have become emboldened by not facing penalties for their own language, it has grown more strident, racist and hateful. Auburn is facing a problem. There are people that donate serious money to the school. Some might see the expression of the professor as having crossed the line and they are responding by hitting Auburn where it really hurts. Auburn COULD have avoided this situation in the past by taking a principled stand rather than virtue signaling.

    1. Perhaps the left was so busy shaping American progress throughout our lifetimes and subjugating clingers in the culture war that it didn’t notice the problem you have described, Paul.

    2. Auburn is facing a problem. There are people that donate serious money to the school. Some might see the expression of the professor as having crossed the line and they are responding by hitting Auburn where it really hurts. Auburn COULD have avoided this situation in the past by taking a principled stand rather than virtue signaling.

      You know this how?

      And suddenly the right’s view of academic freedom has become, “only teach what rich people want you to teach.”

      1. How about teaching something with even the tiniest sliver of academic legitimacy to it?

        Nothing this person has written would be of more intellectual heft than the TP I use to wipe my butt with.

        1. You don’t get to delegitimize something just because you personally don’t like or see value in it.

        2. Have you read it?

        3. Let’s check your ‘academic legitimacy’ standards, damikesc.

          Should schools that teach nonsense — that supernatural stories are true, for example — be eligible for legitimate accreditation or for public funding, in your judgment?

          Thank you.

          1. What would we do with all of those schools who are no longer accredited due to teaching nonsense? I mean, the Ivy League would also cease to exist.

            1. You will spend the rest of your life watching better people continue to shape America’s future against your preferences.

              You get to whimper about it as much as you want, though!

      2. “only teach what rich people want you to teach.”

        Or, sell a product that fills the public need.
        My post up thread holds that student debt should be dischargeable by bankruptcy. The student is buying and education to further their usefulness to society. Surely after 5 years in university, they will have the means to pay off student debt. If not, it should be the university that suffers the bankruptcy. The university failed the customer buying its offering.

  6. Do others, such advise police officers, have that same off duty freedom of speech?

    1. Of course not. Police are notoriously awful to police who turn-in other police officers.

  7. Auburn doesn’t have principles. They have cows.

    Roll Tide!

  8. I appreciate the professor’s sentiment, but isn’t this just a prohibition against lying?

  9. It’s also possible that enrollment is down and they don’t need as many adjuncts. That well could be the backstory here.

  10. Wow. Complete lack of support for this guy’s free speech.

    No, it’s not a matter of Constitutional rights but y’all are found pretty wanting in the realm of free speech principles. Mostly whattaboutism and wanting to end his academic focus.

    Free speech for me but not for thee indeed.

    1. See my comment below: The problem here isn’t what he’s tweeting in his free time, it’s that he’s teaching majors that shouldn’t exist in the first place. Not just redundant, but literally, if the university had to spend money to not have them, it should.

      He’s just tweeting what they’re suicidally paying him to teach to impressionable young students. It’s the latter that’s the real problem.

      1. How to destroy Western civilization, including this suicidal university

        You’re not making your viewpoint discrimination any less evident.

        1. I didn’t mean to make my viewpoint discrimination obscure. I wanted it front and center. There are circumstances under which you shouldn’t engage in viewpoint discrimination, but is this really one of them?

          Look, if you run a cutlery store, you don’t have to hire the guy who shows up for his interview wearing a “Stab the boss!” t shirt, and you certainly don’t have to give him a job as “The guy who plants a knife in the boss’s back.”

          But that’s about what the university has done here.

        2. I think his viewpoint is that these “disciplines” shouldn’t exist in the first place. As far as I’m concerned this instructor can shoot off his mouth as much as he wants. And I hope he does it more. Brings attention to just how useless he is and serves no legitimate academic purpose.

        3. Brett is not saying the man should be fired what he tweeted. That no university should spend money on the inane nonsense that his specialty teaches.

          Odds are, he wouldn’t support an intelligent design major at colleges either.

          1. Except Brett is mighty cagey about whether this guy should be fired for what he tweeted.

            Moreover, Brett does not like this guy’s area of academic discipline where he publishes. Which is also speech. Which Brett is not just advocating against, but declaring illegitimate, anti-American, a cancer.

            1. Can you point to him saying anything close to what you think he is saying?

              This “professor”‘s “field of expertise” is a collection of meaningless gibberish with the pretense of being intellectual. It’s modern-day phrenology, with slightly less academic vigor.

              1. https://reason.com/2020/08/03/extramural-speech-at-auburn/#comment-8384972

                The core mission of a university is to each things that are useful in the real world. Really, that IS the core mission, not “the fearless pursuit of the truth”. Abandon that mission, and the university is just an incredibly expensive luxury good. At best! At worst it can be a cancer eating at the heart of civilization.

                And this guy? He’s one of those tumors. That’s the real truth of it. Academic freedom has developed a bad case of cancer, that’s eating it alive.

                I, too, find certain academic writing gibberish that seems pretty silly to me. I have the humility not to declare something invalid just because I don’t understand it, however.

                I also don’t call invoke eugenics to describe a thing I don’t understand, or writing of a man I have not read.

      2. But that’s not what he’s potentially being punished for, Brett, much as you want to dodge the issue.

        They do have these programs, and I bet they don’t really care that you, Brett Bellmore, think they are worthless. They decided to have them, and hire instructors, and now they want to do something to punish an instructor for a tweet.

        Too many commenters here, including you, are trying to obfuscate issue. It’s dishonest rationalization, and you know it.

        1. “and now they want to do something to punish an instructor for a tweet.”

          They want to punish him for drawing the attention of the wider public to the sorts of programs they’ve decided to have, would be my guess.

          1. FFS, Brett. There isn’t a secret agenda everywhere.

            1. No, but there must be one somewhere. Like they say in the lotto ads, you can’t win if you don’t play.

      3. he’s teaching majors that shouldn’t exist in the first place.

        Why? He’s teaching English, first of all. Should English courses not exist?

        As to his specialties, is the study of how our society actually functions not worthwhile? Is it not useful to understand its strengths and weaknesses? There are millions of people in prisons in this country. Isn’t looking at those circumstances valuable? Might it not help us have more sensible policies in that area?

        You seem to imagine that only engineering or other heavily vocationally-oriented courses should be offered, but that’s a hopelessly narrow view of useful knowledge.

        1. Can you demonstrate that what he teaches does that?

          1. No. Can you demonstrate that it doesn’t?

            Apparently Auburn thinks it does. I’m not saying they are automatically right, but they’ve at least considered the issue, and are presumably more familiar with the course content, as opposed to just a title, than you or I are.

            So maybe, at least, there’s an argument there.

            And I repeat, this controversy has zip to do with the subject area and everything to do with the tweet. Ignoring the fact that Goldberg’s subject area is something you don’t value, and pretend he teaches, say, veterinary medicine. IMO the public reaction to the tweet would be the same. Alabama, may I remind you, is a very conservative state. Would you urge that he be fired then?

            1. Nobody has advocated his being fired for speech here. I have not nor has anybody else.

              If he taught any other field, I’d ask “What is this moron’s expertise here?” and then likely discount every word he said.

      4. So if an engineering professor tweeted the same thing you would be fine with it, and oppose any effort by Auburn to punish him, regardless of what some legislator said?

        Because, make no mistake, the reaction does not depend on what he is teaching. It would be just the same no matter what it was, English, history, E.E., math, whatever.

        1. I’d have no issue with it. Just so long as that runs both ways. I’d like to a conservative professor (as few as they are) and make a comment that some student activists think is offensive and have him not get fired or punished. It either goes both ways or we should undo this concept.

  11. “Goldberg’s teaching and scholarship are closely connected to the substantive content of his tweet.”

    Well, isn’t that the real problem? It’s one thing when you’ve got a calculus teacher who opines on politics in his spare time; There’s no reason to expect it to influence his teaching, and he’s teaching something that actually needs teaching.

    But this idiot’s job and his tweets are one and the same, and they’re both a waste of skin. He’s there to teach stuff any sane university would laugh at. Why are his majors even a thing?

    Even a statistics prof who arranged for his lab class to be taught at a casino in Las Vegas would be more defensible. This guy is basically teaching “How to destroy Western civilization, including this suicidal university” studies. What he’s tweeting in his free time is the least of the problems here.

  12. “It is . . . interesting. It is also in some tension with the core mission of a university to foster the fearless pursuit of the truth.”

    Look, I get the idea of academic freedom. It’s a nice idea. But, taken to extremes, it seems to be “in some tension” with a basic concept of economics: Scarcity. The university exists in a world of scarcity, and consumes resources. It has to somehow justify its consumption of those resources.

    The core mission of a university is to each things that are useful in the real world. Really, that IS the core mission, not “the fearless pursuit of the truth”. Abandon that mission, and the university is just an incredibly expensive luxury good. At best! At worst it can be a cancer eating at the heart of civilization.

    And this guy? He’s one of those tumors. That’s the real truth of it. Academic freedom has developed a bad case of cancer, that’s eating it alive.

    Cancer is a disease where a cell goes wrong, and starts endlessly dividing, consuming resources needed to keep the body alive, displacing cells performing useful functions, and even affirmatively poisoning the body. And that’s what this guy is doing to the university. He’s one cell in an academic cancer that is eating the university system alive, feasting on its resources while poisoning it from within.

    Does the university have an immune system? Can it fight off the cancer, or will it die? Honestly, I’m betting most of them will die.

    1. What if the cancer cells vote for themselves to be the highest priority of the body’s systems to be kept alive, until the only thing left is a giant, cancerous lump attached to what’s left of a free economy, utterly convinced the sickly people chained to them, dragging them around, remain still the problem.

    2. Brett lays out which freedom is good, and which freedom is cancer.

      Do you listen to yourself? That kind of rhetoric could come out of some tinpot dictator and wouldn’t sound out of place.

      Indeed, your selectively anti-freedom viewpoint is bad for America and its free speech principles, but I’m not going to declare you cancer and advocate that you lose your job. Which is a position I learned on this website.
      You’ve been here for a while, and yet it doesn’t seem to have gotten through to you.

      1. This guy IS the advance man for the tinpot dictator, Sarcastro.

        If this guy were spending his days ranting on a street corner, I’d say, leave him be. But should anybody offer him a paycheck to rant? No, they shouldn’t.

        1. This guy IS the advance man for the tinpot dictator, Sarcastro.

          Says a blind supporter of the would-be dictator in the White House.

        2. I”d missed this.

          So you think like critical prison studies is going to lead us to dictatorship, eh?

          That’s as nonsensical as the ‘Race Mixing is COMMUNISM’ lady.

      2. Anyway, care to address my substantive point?

        The university does not exist to fearlessly pursue the truth. It exists to preserve, expand, and transmit knowledge, both useful and potentially useful. That’s why people give it resources. NOT to “fearlessly pursue the truth.”

        Now, we don’t know in advance what knowledge is going to be useful, so there’s a lot of room in that mission to pursue knowledge the utility of which is unknown or questionable. And as long as the university is around, it can do other things, too. But that which preserves the university as an institution in a world of scarcity must be job 1, or else jobs 2-n never get done.

        This guy is not advancing job 1. No, it’s worse than that, he’s impeding job 1. He’s reversing job 1.

        He’s consuming resources that could be used to hire somebody actually advancing human knowledge, or teaching students useful stuff, or, I don’t know, sweeping the halls and mowing the lawn. If he just sat there doing nothing, he’d be dead weight, and as a real world institution the university can only carry so much dead weight before it sinks under the load.

        But he’s not sitting there doing nothing. He’s actively doing worse than nothing. You could fire him and burn his paycheck, and the university would actually be ahead.

        1. Read John Henry Newman’s _Idea of a University_

          1. Looks interesting, so I will.

            But, things have internal justifications, and external justifications. The university, were it self sufficient, would not have to worry about external justifications. But it isn’t self-sufficient, it lives off resources the larger society gives it.

            So it has to be concerned with not persuading larger society to stop giving it resources. That is an existential requirement, and that is my point.

            How will the university fearlessly pursue the truth, if larger society (correctly!) determines that the university has at best become a waste of money, and at worst an actual threat to Western civilization? That day is coming, it seems to me; They have already persuaded a fair proportion of the population that this is the case.

            1. Newman was trying to establish a Catholic university in Ireland, and it didn’t work out for a bunch of reasons — the book is a collection of the speeches he gave.

              The thing to take from it is his concept of a universal knowledge of humanity and each department teaching it’s portion of it, but staying out of others — e.g. separating science and theology.

              And as to your points — yes — and higher ed experts were saying, *before* the Wuhan Flu, that upwards of 50% of existing institutions will not be here in a decade. Not mentioned is that the tuition discount rate of private schools was averaging something like 47% just to fill the seats (and probably is more now).

              They somehow think there will be a massive Federal bailout — because they deserve it. I don’t — and critical mass will exist when a majority of employers are no longer willing to pay a premium for a college degree. It’s not going to be the “threat to Western Civilization” as much as employer frustration with graduates who “can’t read, can’t write, & can’t think.”

              1. You’re proposing a strident dogma jockey as the provider of insight concerning educational institutions?

                Education-bashing clingers — especially those who disdain modernity in education, often for failure to suppress science and history to flatter superstition and dogma — are among my favorite culture war casualties.

        2. The university does not exist to fearlessly pursue the truth. It exists to preserve, expand, and transmit knowledge, both useful and potentially useful. That’s why people give it resources. NOT to “fearlessly pursue the truth.”

          How does one expand knowledge without pursuing it?

          If you think an area of study is silly, you get to say that and put forth arguments why it is so.

          But you’re saying it’s not just silly, it’s anti-American cancer. That’s not argument that’s populist bluster in service of ending speech.

          As to your argument that such studies are killing universities, that is not in evidence.

          1. Yes, you obviously expand knowledge by pursuing it. But if “the” purpose of the university was to fearlessly pursue truth, they could just blow off teaching anybody, for instance. And yet, a university that didn’t teach would be an utter failure.

            Likewise, a university that pursued new truths, but let old ones be lost, would also be an utter failure.

            All three components work together, but pursuing new truths is actually the least essential of them, not the primary aim.

            1. I see no evidence Auburn, nor any school, has left off of teaching. Nor that it is ignoring history.

              What it looks like is that you have a particular backwards-facing point of view you don’t think the university is pushing strongly enough.

              And that therefore you don’t care who gets fired for their speech because universities that don’t serve the Brett viewpoint are actually hurting themselves. And America.

              It’s a long distance to go in order to rationalize not caring much about free speech principles for someone you disagree with, but it got you there.

              1. Sorry, Sarcastr0, but there’s tons of evidence Auburn has left off teaching: just look at how dumb all the graduates are.

                Roll Tide!

                1. Ranking of states by
                  educational attainment and quality

                  High school diploma
                  Alabama 45

                  College degree
                  Alabama 46

                  Advanced degree
                  Alabama 41

                  Education quality
                  Alabama 50

                  Roll Tide!

                  1. That’s because Alabama, the state, does not believe in social services. Of any kind. Which, as I’m sure you’ll agree, is both insane and counterproductive, not to mention morally wrong.

                    Those statistics, however, have nothing to do with The University of Alabama and its proud and mighty tradition of excellence (well… post-George Wallace, anyway—sort of).

                    But I understand, you can’t help yourself, even if you do end up insulting and alienating someone on your own side.

                    Run along, now, y’hear?

            2. Brett,

              What you are arguing is that the university should only pursue subjects that you think are worth studying. Here’s a clue: you don’t know everything. You don’t actually know what Goldberg teaches. I don’t know either. It might be nonsense, or not.

              But you, and everyone else here demanding the guy be fired are being complete and utter hypocrites on the free speech on campus issue. You dodge and twist and evade, but the fact is you want the guy fired because of his tweet, while you’ve been outraged at similar cases where the victim was on your side.

              1. Actually, my position, (In case I’ve been unclear.) is that the tweet, taken together with his curriculum vitae, is enough to justify a good, hard look at his teaching.

                I have a strong suspicion, all things considered, that he’s probably teaching “studies” this, and “studies” that, in place of English lit.

                If, despite all that, he’s doing a reasonable job of teaching English literature, good for him. I’d be surprised, but that happens.

                1. Guess what, Brett? That’s still viewpoint discrimination. His chosen area of study, plus his tweet, mean lets give him special scrutiny.

                  You’re being more collectivist than I am on this issue, and it amuses me.

    3. Brett — don’t forget the origin of “academic freedom.”

      Mrs. Stanford didn’t like the fact that a Stanford Economics Professor was saying that her late husband had exploited Chinese laborers in building his railroad(s). At her request, Stanford fired him. This was the origin of the AAUP and a few other things.

      ‘Academic freedom” is the right to “pursue truth” — and the initial AAUP statement had a restriction that faculty had to respect the academic freedom of their students — that’s often overlooked.

      “Academic freedom” was never intended to be a license to do whatever you please with impunity….

    4. Suddenly, a speaker you disagree with is taking academic freedom “to extremes.”

      You guys are laughable hypocrites.

    5. Tell us, Brett.

      How much do you know about the content of the course he teaches?

      Have you read the syllabus, any of the reading materials?

      Because if you don’t know any of that you are talking out your ass.

    6. “The core mission of a university is to each[sic] things that are useful in the real world. Really, that IS the core mission, not “the fearless pursuit of the truth”.

      @Brett Bellmore. What in your considered opinion are those subjects which are worthy of being taught beyond STEM and easily marketable skill sets? Would you approve of philosophy, including the utterance of long dead men who didn’t speak English? Literature, including fiction and poetry? History? Anthropology?
      Archaelogy?

      And that “cancer” you say is destroying universities, what can you cite as convincing support for that extraordinarily dramatic con-tention? What previously great schools have been destroyed by what you decry or are soon to die as a result of your “cancer”? (I think we should leave out a number of special cases like small liberal arts colleges, a few single sex ones, demographically disadvantaged, etc.)

      Do you favor big athletic programs so long as they pull in money and alumni donations?

  13. “F*ck every single cop. Every single one,”

    This statement makes me feel bad.
    He should lose his job and be prevented from ever working again.
    He should be permanently banned from ALL social media platforms.
    It is the way.

    1. I think it depends on what the word “F*ck” means.
      I argue it means “Kill.”

      It clearly doesn’t mean “have sexual intercourse with”, so what does it mean?

      Now replace “cop” with “queer & feminist theory professor” and you have what would be perceived as a real threat in academia. I’m not saying it legally would be one, but that would be a moot point. A student tweeting this would be expelled as a threat to public safety.

      I’ve seen far less be acted on.

      1. I argue it means “Kill.”

        I argue that you’re really stupid. And unlike you, I have actual evidence in support of my argument.

        It clearly doesn’t mean “have sexual intercourse with”, so what does it mean?

        Um, gee, I dunno. I guess if I weren’t a native English speaker and thus didn’t understand basic English communication, I might resort to a dictionary. And in there, I’d find

        transitive verb
        1 usually obscene : to engage in coitus with — sometimes used interjectionally with an object (such as a personal or reflexive pronoun) to express anger, contempt, or disgust

        And I’d realize that in fact this is the way, “Fuck X” is normally used, whereas it is never used to mean “Kill X.”

      2. ” I think it depends on what the word “F*ck” means.
        I argue it means “Kill.” ”

        Boy, am I glad you’re on the other side.

        Mostly because I like to win.

  14. Play stupid games, win stupid prizes.

    This tool wants “free speech for me, but not for thee”. How does it feel when the shoe is on the other foot?

    Now he knows what it is like for us “normals” who just want to be left alone and live their lives without the chance that one non-orthodox comment could destroy everything they have worked for their entire lives.

    This bastard, and those who attempt to silence all opposition, will not like it when the rules are enforced on them.

    1. How do you know what this guy wants?

      You have conjured this whole strawman to hate, and hate it you do. But you don’t know much about the person in the OP at all.

    2. This tool wants “free speech for me, but not for thee”

      Bullshit. How do you know that?

  15. Auburn is a private university, this guy is untenured, the speech at issue has no discernible scholarly content, it calls into question his ability to perform his job (policemen sometimes go to college), and it will tend to negatively impact his employer. Absent some contractual issue, I don’t see an issue with firing him, although the university has not in fact done that, so far as appears.

    1. Auburn is a public, land grant university.

      1. As such, it is required to have Army ROTC.

      2. My mistake. In that case, the First Amendment clearly protects his speech, and we have no need to consider the issues of academic freedom. A janitor would be just as protected as this professor.

        1. Public EMPLOYEES do not have unfettered free speech rights. (Imagine cops putting bumper stickers on their cruisers….)

          More importantly, threats of violence are not protected speech.
          Under the standards of academia (not the real world), this was a threat of violence — and hence it should be dealt with in the manner that similar threats of violence are dealt with by the Chicken Little Brigade.

          Substitute “BLM protesters” for “cops” and you will see what I mean — he’d be labeled “the next Virginia Tech shooter.”

          “Chicken Little Brigade” hopefully indicates what I think of this hysteria (and the BITs who promote it) but hey, he should be treated like everyone else.

        2. Well, except that, while the speech in question, a tweet outside working hours, would be utterly irrelevant to the janitor’s job, while it might incline you to look at what the prof is saying in the classroom.

          1. Brett, I’m just waiting for intrepid students figuring out how to capture Zoom lectures and clips showing up on any number of websites.

  16. From the blog: Alas his remarks were amplified by Donald Trump Jr. who warned that the “egg heads” are “gunning for middle America.”

    Why the “Alas”? Is Professor Whittington against publishing the truth?

    1. I suppose the concern is just that Trump didn’t write that “some” egg heads are gunning for middle America. After all, it isn’t all of them, 70% tops.

      1. “gunning for middle America.”

        WTF does that even mean? Trump Jr. is an bigger asshole than his father, if that’s possible.

  17. It’s a good thing he didn’t say something really reprehensible, like “Everyone’s life matters”, or “I’ll continue to buy art for the museum that was made by White men.”

  18. I agree that what’s sauce for the goose has to be sauce for the gander. If the Conspiracy is going to defend professors on the right who make remarks that result in outrage, than it should do the same for professors on the left.

    I also notice that how one views a remark like this — whether as a forgivable thoughtless one-time off-the-cuff remark where it’s unfortunate that technology preserves remarks that would once have gone on unnoticed, on the one hand, or as a remark that reveals the depths of the speaker’s sole and is fundamentally representative of everything the speaker is about, on the other — seems to depend only on ones ideological stance and broad-brush caricatures, and not on any specific facts.

    Finally, I notice that both sides seem to be in complete agreement that the real purpose of the other discourse is to seek their destruction, and hence they don’t have to engage with it or answer any of the questions it raises. This would seem a rather convenient view on both sides. The pen may be mightier than the sword in the long run. But the sword sure seems to be an easier way of getting rid of problems, and ot avoids any risk of considering the possibility that some of ones thinking may have been wrong.

    We are a long, long way from the world that Lionel Trilling described in his story on a conversation he overheard between Martin Luther King Jr. and a young segregationist on a flight to Monthomery in 1964, a world in which the sides sometimes attempted to engage each other and spoke politely. A long, long way.

    1. “or as a remark that reveals the depths of the speaker’s soul and is fundamentally representative of everything the speaker is about,”

      Were he a calculus teacher, or physics, I’d be inclined towards “a forgivable thoughtless one-time off-the-cuff remark”.

      But his curriculum vitae suggests things are more in the “fundamentally representative of everything the speaker is about” vein of things.

      1. It’s not even that — what does the “triangulation of Black studies, critical prison studies, and queer & feminist theory with an emphasis on the methodologies of literary and performance studies” have to do with the teaching of ENGLISH LITERATURE?!?

        Remember “Mattress Girl”? That was “performance studies” and she’s now graduated to being suspended from the ceiling while some guy whips her. What *can* this person teach undergrads?

        Theater, maybe. Sociology or Psychology for the prison stuff, maybe even Criminal Justice. Women and Gender Studies for the queer & feminist stuff and AfroAm for the Black studies stuff.

        I keep coming back to Newman’s warning about each department teaching its own stuff and no one else’s. And if Alabama is like Massachusetts where cops who get a college degree get a pay raise, there may be cops interested in taking a course on prison studies and that may be part of the issue here….

        1. And like, umm, this person has done hard time.

          What does he/she/it know about prisons?

          1. I think somebody who has done hard time potentially knows a lot about prisons, that could usefully be taught in a university. You’d have to be careful about who he was trying to be useful to, but there’s no denying he could have relevant knowledge.

            But, you’re right, that list of stuff doesn’t seem to shout, “This guy should be teaching English literature!”

            1. My point was that he HASN’T done hard time — the closest he has come to prison was teaching in the Cornell Prison Project.

              1. If that was your point, you’ve got a typo there.

                1. No, I was being sarcastic.
                  Look at his picture and you will see what I mean.

        2. Maybe you should take your complaint up with the Administration at Auburn, who after all set up theses classes and hired the guy, rather than yelling for him to be fired.

          1. Right, the adminitrator(s) who approved the hiring should be fired.

  19. Compromise: He can stay but the guy or gal who hired someone who purports to study something as useless and stupid as “triangulation of Black studies, critical prison studies, and queer & feminist theory” should be fired immediately.

    1. That’s not a better position on freedom of speech.

      1. It allocates responsibility.

        Dude “studies” utterly worthless pseudo-subjects and should never be hired for any position at a college. All this fuss springs from negligent hiring.

        Let him have his one year position and get rid of the dangerous permanent administrator.

        1. Just one administrator?

        2. You don’t like that kind of scholarship. Noted.

          You think people who study the thing you think is dumb should be fired for studying that thing. Along with anyone who hired them for studying the thing you dislike.

          You, yet again, suck at free speech.

          1. “You think people who study the thing you think is dumb should be fired ”

            Having reading problems?

            “He can stay” and “Let him have his one year position”

            1. Yes, Bob, I can read. As my comment made clear, you just want him fired for a different viewpoint he holds.

  20. Bigger question: How does Auburn justify hiring a white guy to teach African American studies?

    1. Diversity?

      I bet he’s also Jewish (because of his last name, although Whoppi Goldberg, wasn’t born Jewish) so it’s a twofer. If he’s gay it would be a threefer (I only mention that one because of his scholarship in “queer” studies.

    2. You don’t reed gud, He teaches English.

  21. And the double-standard continues.

    You are all really bad at being libertarian.

    1. Or maybe you’re really bad at understanding libertarianism.

      1. This comment thread is full of people saying this guy’s academic freedom doesn’t matter.

        Ed, for one, is saying academic freedom was never intended to be as broad as it is. Not very libertarian.

        You’re saying universities are universitying wrong and shouldn’t be as free as they are.

        Basically, there’s a realm of study you have decided is bad, and you want it to end.
        Good libertarians are not so unhappy with other people saying stuff they don’t care for.

        1. No, I’m saying they’re univeritying wrong, and should utilize their freedom differently if they value their survival in a free market, because if they keep this up eventually the money spigot will be cut off.

          The guy has a right to say whatever he wants. He doesn’t have a right that the university pay him to do it.

          1. ‘Utilize your freedom differently’ is not a libertarian thing to say. Even if you’re right about the market, people and institutions don’t need to abide by market forces if they don’t want to. But you want there to be consequences beyond the market.

            We are not talking about rights – the firing is legal. We are talking about principles. Principles mean that even if you think someone is using their freedom incorrectly, you fight for their right to do so.

            You, conspicuously, are on the other side of that fight.

            As Bernard pointed out, your issue with his academic discipline is collateral to your apparent apathy about his speech.

            1. No, it’s a perfectly libertarian thing to say: Thinking that people are entitled to do something, and thinking that it isn’t a mistake to do it, are entirely different things in the view of a libertarian. We’re perfectly capable of defending your right to do something, and saying that you’re stupid to do it, and deserve to suffer the consequences doing it will bring.

              The guy has a right to say what he wants, but the university has a right to get rid of him if they don’t like the way he teaches. And the university’s funding sources have a right, too, to make funding decisions based on what the university does in that regard.

              Rights and consequences, they go together. Try to separate them, and the rights go bye-bye.

              1. You don’t seem to trust the marketplace, though, and would prefer universities get out ahead of it by hewing to your preferred set of allowable inquiries.

                The university has a right to fire him, we all agree. That is not what we are discussing. We are discussing speech principles. And you seem to be having a lot of trouble with the idea of people disagreeing with you should still have jobs.

                1. I tend to trust free markets, but for various reasons higher education isn’t much of a free market. Credentialism inflating demand, subsidized loans muting price signals, and a definite cartel aspect thanks to accreditation.

                  1. Quite a change of thesis, Brett.

                    So the whole thing about cautioning the schools if they value survival in the free market was bullshit. Your entire argument that this guy’s major will wreck universities was market-based, and thus bullshit.

                    You want to argue we should get rid of student loans, enjoy libertarian irrelevance but you’ll have a consistent argument. However, that is now extremely far afield of this guy’s firing, either for his speech or his chosen field of study.

      2. No. You’re terrible at being libertarian.

    2. What double standard?!?

      Advocate harm to anyone and the Chicken Little Brigade freaks.

      1. Advocating harm to people isn’t good, Ed.

        1. And this guy did it.

          1. And yet the chicken little brigade didn’t freak.

            Whoa.

  22. Every so often, it’s good to be reminded where the real and powerful threats to free speech generally come from.

  23. The American Heart Association published in it’s journal an article calling for the elimination of preferences in admission to med school and training programs based on race or gender. It has led to a fire storm of criticism of the authors, their institution and training program, and the AHA itself.

    https://twitter.com/HeartBobH/status/1290095180591165441

    This is a never ending struggle.

  24. I AM a free speech absolutist. This guy should not have to worry about his job because of this. But the same goes for everyone else. What we say on our own time should have no bearing on our job. It has nothing to do with academic freedom. Just freedom.

    1. That being said, attacking criticism of this guy (as the OP does) that does not call for his firing shows a double standard.

    2. So to be clear…

      You think Random Joe #5 should be “free” to go online and argue that all gay people should drawn and quartered, no exceptions? I agree.

      But further, you think that I should be obligated to ignore what Random Joe #5 does in his free time and say “sure, I want to pay this guy to work in close proximity to me for eight or more hours a day five days a week”? Fuck off.

      Freedom of Speech does not, and has never meant, freedom from consequences. Telling people that they can’t respond or react to other people’s speech is tyranny in the extreme.

  25. If you want to argue against such programs, just insisting they are illegitimate and want to tear down America won’t really get the job done.

    That’s all I’m seeing here – reflexive animosity. Which is the go-to these days, I know.

    1. I would not like a ‘Holocaust Skepticism Studies’ department. The way a free-speech advocate would get rid of that department would be to explain why Holocaust denial is an antisemitic scam, not to pound the table over and over again and say ‘This is an OUTRAGE.’

      It may outrage me, but that alone doesn’t delegitimize something.

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Gun Stores Have Standing to Raise Their Customers' Second Amendment Rights

in challenge to Maryland's handgun license requirement.

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So the Fourth Circuit held today in Maryland Shall Issue v. Hogan, in an opinion written by Judge Steven Agee and joined by Judges Barbara Keenan and Julius Richardson. The court cited Supreme Court cases that allowed alcohol stores to assert their prospective customers' Equal Protection Clause rights in challenging sex-discriminatory drinking ages, and contraceptive sellers to assert their prospective customers' substantive due process rights. The district court will now need to consider whether the Maryland law is consistent with the Second Amendment.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The decision that the individual plaintiffs don’t have standing to bring their vagueness challenge is troubling.

    I don’t have a strong opinion when it comes to whether the panel is right on the law on that issue. But it sure would be nice to have the question definitively settled by the courts. This is a point of general concern among some of the shooters that I know. They don’t know whether they’re violating the law by, e.g., letting a friend use their firearm at a range (or at a range at their home). Despite what the panel says about the MD State Police’s FAQ, I’ve had someone I know tell me that they’ve been lead to believe otherwise by individual state police.

    Maybe the concern is unfounded, but the terminology in the law is vague and would – I think – allow law enforcement to pursue the prosecution of someone for firing – or even just handling – someone else’s firearm. I think people have a right to know for sure whether they are allowed to do such things.

    1. Despite what the panel says about the MD State Police’s FAQ, I’ve had someone I know tell me that they’ve been lead to believe otherwise by individual state police.

      As SCOTUS has previously ruled, the police are allowed to lie. Additionally, the Police do not interpret the law, the courts do. What the police say has no bearing on what a Prosecutor will try to charge nor how a court will rule. So yes, the courts need to step in on this one to explain exactly what the law means.

    2. The Maryland State Police are a disaster, especially when it comes to firearms regulations. Source: used to live in Maryland, had to deal with MD SP whenever engaging in a private firearm sale.

  2. I am ok with this, as I am ok with abortion clinics having standing to challenge restrictions on behalf of their customers.

    1. Right. If your business depends on some constitutionally protected, or even arguably constitutionally protected, activity, you are clearly injured when the right is infringed. That should give you Article III standing.

  3. I’m troubled by the concept of needing a state license to exercise a constitutional right. The courts wouldn’t countence requiring a license to have a blog, or get an abortion, or for traveling outside the state. Claiming requiring a license and 4 hours of training doesn’t impermissably burden those rights wouldn’t fly in court, even though they aren’t explicitly guaranteed not to be infringed, and you could certainly make the argument that 4 hours of training on the dangers of an abortion and post op care and how to travel safely out of state by highway or air would be the minimum needed to safely exercise those rights.

    1. If thousands of people were killed every year by blogs, then requiring some sort of licensing and training might not be so far fetched.

    2. Actually let me elaborate on my previous comment.

      The lion’s share of practicing law consists of speech. Advocating in court, advising clients, writing wills, that’s all speech. So what about someone who has never been to law school claiming that requiring that he have a law degree and pass the bar violates his free speech rights? Pretty silly argument, right? Well, so is the argument that because there is a constitutional right to bear arms, that there can be no reasonable state regulations.

      There are time, place and manner restrictions on speech. There are restrictions on some people engaging in certain types of speech at all, such as the unauthorized practice of law. What Chelsea Manning did was speech, but she went to prison for it (and according to some here, not for nearly long enough, and so will Edward Snowden if the feds ever get their hands on him).

      I’m sorry, but the idea that there can be no reasonable regulation of constitutional rights is nonsense on stilts.

      1. The law permits some forms of licenses on constitutional rights and does not permit others. Broadcasters hold licenses. So do abortion clinics. So do pharmacists who dispense contraceptives. So do lawyers, as you note.

        I think a lot of Second Amendment advocates don’t really think through this issue. They just see the prior restraint rule in the speech context and say “you see, we shouldn’t have to have a license either!”. Different rights, in different circumstances, have different scopes.

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Election 2020

Sixth Circuit Rejects Covid-Based Challenge to Ballot-Access Laws

The court rejects the claims that Ohio's ballot-access laws have become unconstitutionally coercive due to the pandemic.

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Today, in Hawkins v. DeWine, a panel of the U.S. Court of Appeals for the Sixth Circuit rejected a constitutional challenge to Ohio's ballot access laws premised on the argument that, due to social distancing requirements, it is now too onerous to attempt to collect in-person signatures.

Judge Cole wrote the opinion for the court, joined by Judges Siler and Stranch. His opinion begins:

In response to the COVID-19 pandemic, the State of Ohio issued a series of orders restricting in-person gatherings. But it left unchanged its ballot-access laws, which require candidates and minor political parties hoping to be listed on November's ballot to show that they have a modicum of community support by collecting petition signatures from Ohio voters. The law requires that the signatures be collected in person, a task which has become more difficult in the era of social distancing. This case presents us with the question whether the State's ballot-access requirements, as applied, have become unconstitutionally burdensome in light of the orders restricting in-person gatherings. Binding precedent compels us to conclude that they are not.

The court makes rather quick work of the plaintiffs' arguments, concluding that under the Anderson-Burdick framework applied to such claims, the state's ballot access laws and Covid-19 responses easily pass muster.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

Right of Access

Court Seals Name of Expert on Venezuelan Law

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From Judge Katherine Polk Failla (S.D.N.Y.) last week in Petroleos de Venezuela S.A. v. MUFG Union Bank, N.A., a commercial dispute in which the judge may have to apply Venezuelan law, and would therefore consider a report of an expert on Venezuelan law:

On July 7, 2020, Plaintiffs filed a letter motion requesting that the Court compel Defendants to disclose publicly the identity of their Venezuelan law expert…. After carefully considering the parties' submissions, the Court determined that Defendants had not made a sufficiently specific showing of potential danger to their expert were their expert's identity to be publicly disclosed, and therefore ordered Defendants to submit further details, which the Court in turn would review in camera. On July 29, 2020, Defendants filed the requested submissions on an ex parte basis. Having now reviewed Defendants' submissions, the Court finds that there is sufficient evidence of potential harm to Defendants' expert that protection of the expert's identity is warranted. Accordingly, Plaintiff's motion to compel disclosure is DENIED.

The defendants had argued that,

In light of the volatile political and security situation in Venezuela, the expert has reasonable concerns that disclosure of the expert's name would risk retaliation against the expert and the expert's family and their personal safety. There is no public interest served in disclosing the expert's identity, where the expert's full opinions are available on the Court's public docket and the expert's identity is not at issue….

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Supreme Court Leaks Are Unfortunate, But This Wasn't A Big Deal

A response to my co-blogger Josh Blackman.

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My friend and co-blogger Josh Blackman paints a picture of a Supreme Court in deep crisis, perhaps all the fault of Chief Justice Roberts.  As Josh sees it, the Supreme Court Justices may be trapped in a toxic relationship, with no choice to be whistleblowers to let the public know of just how terrible the Supreme Court under Chief Justice Roberts has become.  Josh argues that Chief Justice Roberts must himself take the steps to salvage the situation, including personally interviewing every single employee at the Supreme Court (probably around 200 people) to find every leaker.  Josh gives the Chief Justice one year to turn the ship around or resign: "If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court."

I see this very differently, to put it mildly. I thought I would say why.

(1) We seem to get various kinds of leaks from the Supreme Court every few years.  It's really unfortunate. I think the Court would be better served if these leaks didn't happen.  But they happen, and they have happened, from time to time.  Unfortunate, but not the crisis that Josh suggests.

(2) The leaks this time were really boring.  I mean, I get that everyone is fascinated by any leak from the Supreme Court.  But the leaks from Joan Biskupic's series struck me as the least revealing, least interesting leaks I can recall.  They were mostly about what the Justices circulated amongst each other (stuff intended for every Justice and every law clerk) about their votes in various cases that ultimately became public.  Off the top of my head, I don't think we learned anything particularly revealing or unexpected.  Josh paints a contrasting picture of a Supreme Court "tear[ing] itself apart,"  a "toxic" situation, a "crisis of confidence,""a whirlwind" that is "demolish[ing] the marble palace from the inside."  But I don't see any of that.  It seemed like, well, kind of a normal Term.

(3) If I understand Josh correctly, his view is that if the Chief Justice can't stop other Justices from leaking, Roberts himself must step down.  That is so, Josh argues, because it is "his Court," and as its leader, he is ultimately responsible. But it seems to me that each Supreme Court Justice has agency here. The Associate Justices don't work for Roberts. He didn't hire them, and he can't fire them. And if one or more of them are hurting the Court by leaking, that is on them, not on the Chief Justice.  To be sure, the Chief Justice has a formal institutional role that other Justices don't have. But I don't see why that should make him responsible for their behavior.

 

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  1. Let’s hear a take on this being all a piece of fiction, or at least 90% of it being fake. Why isn’t anyone asking the editors of CNN to back the ethics being such an extensive leak story and to back it up with verifications. I know the media doesn’t exactly have ethics these days, but if they are going to publish so much based upon supposed leaks I hope they had some fact checking in place. Let’s at least hear about that process.

    1. You wants leaks regarding the editorial process at CNN — to flatter your right-wing fever dreams about journalism in general and leaks to journalists, fueled in particular by a downscale law professor’s blog post (at a discredited site wearing the pelt of a once-legitimate publication) — concerning a CNN report on the editorial process at Supreme Court?

      1. What’s wrong with asking CNN to provide support for its assertions? Surely you don’t think we should accept them on… faith?

        1. Joan is one of the best reporters in the business, with established contacts throughout the bench and Supreme Court bar. If she made something up, her career would be over by now. (Seriously.)

          1. If you say so. I don’t have the background to evaluate her reputation. And I don’t know if she made something up, or if her sources made something up, or if she engaged in motivated interpretation of the facts, or if her sources did, or if she or her sources misinterpreted the evidence, etc.

            When something is reported transparently, I can always check the sources. But if something is reported without transparency, the possibility that it is fabricated or otherwise incorrect is always on the table and can’t be dismissed out of hand.

            1. ” I don’t have the background to evaluate her reputation. And I don’t know if she made something up, or if her sources made something up, or if she engaged in motivated interpretation of the facts, or if her sources did, or if she or her sources misinterpreted the evidence”

              So what are the people who ARE in position to evaluate these things saying publicly? That should give you a good idea.

              1. So now I have to evaluate Prof Kerr’s ability to evaluate Joan Biskupic? Yikes.

                And of course, it’s always possible that her career would be over if she didn’t make stuff up. That’s a problem in fields like journalism.

                1. Joan is a person. People generally care about their reputations. She has a good one and one of long duration. If she is lying, it will come out. Her reputation will suffer accordingly. This tilts in favor of believing she is reporting true things.

                  There are people who could speak up, including anonymously, to other journalists blow the story up. To my knowledge, that hasn’t happened. If people who know the truth could contradict her, but haven’t, that’s another reason to believe what she is saying is probably true.

                  As Orin points out, the stories aren’t terribly unusual or outlandish, so are plausible.

                  All this provides some reason to assume it’s true rather than assume it’s false.

                  Against these facts, what reason do we have to believe she is making it up?

                  This kind of thing could really springboard a young career, but she already has an established reputation. It seems she has more to lose than to gain. She could write any number of things.

                  I doubt there is any substantial monetary benefit to her writing this instead of some other piece. She writes regularly about the Court.

                  Maybe she is trying to paint someone as looking bad and someone else as a hero for ideological purposes. Perhaps, but, as Orin points out, there really isn’t much surprising in here. Nothing that outlandish.

                  The most plausible motive for making up these stories about the Court is that she was trolling Josh Blackman and it worked to spectacular effect, getting him to write a deliciously comedic piece in which he revealed his utter lack of seriousness as a rational, objective thinker. (The image of Roberts going around to each of the other Justices to get them to pinky swear to secrecy is hilarious, but not quite as hilarious as the one year deadline Josh sets for Roberts to complete his Encyclopedia Brown sleuthing.) But I doubt Biskupic could have anticipated that it would work and how well it could work.

                  The best evidence is in favor of believing the piece, but no one (looking at you Josh) should bet their reputation on it. Well, except for Joan, because she knows whether she is reporting accurately or not. It is reasonable to non-hysterically take it at face value.

                  1. “Well, except for Joan, because she knows whether she is reporting accurately or not.”

                    She knows whether she is accurately reporting what her sources tell her. We don’t even know that.

                    “It is reasonable to non-hysterically take it at face value.”

                    It certainly is. But it’s also reasonable to dismiss it as completely bogus. That’s the problem with non-transparent reporting.

                    1. We don’t even know that.

                      Which is what I said. ?

                      It certainly is. But it’s also reasonable to dismiss it as completely bogus. That’s the problem with non-transparent reporting.

                      No. It really isn’t reasonable to dismiss it as completely bogus. There is little, if any, reason to assume it is completely bogus. It is reasonable to remain entirely agnostic on the matter, but not to dismiss it as completely bogus. Those are different things. That’s the point. You are going off into Dr. Ed land by asserting that it is reasonable to assume weird conspiracy theories simply because an often credible source with reputational interests at stake has used unidentified sources (even though she has not been contradicted by contrary sources (anonymous or otherwise).

                      It’s the difference between being an atheist, being an agnostic, and being a convinced Scientologist. The best evidence supports the first, though the second is the most rigorously defensible as the matter is not subject to conclusive proof, the third is just bat shit crazy.

                      You seem to be saying it is as reasonable to dogmatically adopt beliefs with no evidence supporting them as it is to adopt contingent beliefs based on the best available evidence (and/or the lack of evidence where one would expect to see evidence). If you are saying we should all be agnostic regarding Joan’s reporting, those aren’t the words you used. You said “completely bogus” which is the opposite of being agnostic.

          2. I don’t think it is so much that she is “making stuff up” as she is reporting stuff that is undersourced, underanalyzed, biased, and unconfirmed.

            She’s reporting what her sources tell her. What her sources tell her, however, is not necessarily an accurate picture of what goes on at the Court.

            Good reporters don’t just rush to press with juicy gossip. They confirm it, and if they can’t confirm it through reliable sources who can account for the initial sources’ biases, they don’t report it. And that’s really tough, because their employers want something to publish.

            Joan Biskupic is the Judith Miller of legal reporting. Yes, indeed, she is reporting what her sources tell her. Doesn’t mean she is reporting stuff that is fit to report.

            1. Thank you. Some people do not seem to understand that “not a deliberate lie” is not the same as “reliable truth.”

            2. The story implies multiple sources.
              Pretty easy to make sure they corroborate one another.

              Maybe it’s manipulated or made up by those sources, but I don’t think there’s any evident reason to be skeptical.

              1. A justice and that justice’s clerks = multiple sources. But that doesn’t mean you have anything reliable if that’s the sourcing.

                Look, there is a pool of 45 people who are privy to some of these communications, and a pool of 9 that is privy to all of them. It’s actually really hard to get actual, reliable information, and really easy to end up with only one side of the story when someone leaks to you. Which means a lot of the time, she should not be publishing.

            3. “Joan Biskupic is the Judith Miller of legal reporting.”

              I don’t see it. Perhaps because I have experience as a reporter and editor.

              (Judith Miller’s failures do not diminish the luster of her half-brother, Jimmy. Jimmy handled cowbell on the flip side of that one, too.)

          3. People said that about Jayson Blair too….

            1. Jayson Blair was exposed roughly four years into his career because, if you make up stories and publish them via a national news organization, you tend to get caught. Joan Biskupic has been covering the Supreme Court for over 30 years now. If she was Jayson Blair, she wouldn’t have this job anymore.

              Which is not to say sourcing, fact-checking, etc., no longer applies to her, but the Blair situation provides reasons why this is very different.

              Blair’s stories were sometimes too good to be true. As Kerr notes, Joan’s stories are not particularly salacious or unexpected.

              Blair was an ambitious, not-yet-established journalist trying to make his reputation. Joan is a well-established journalist who has a substantial interest in protecting her already enviable reputation.

              Blair was caught because he published falsehoods in a national outlet and people who knew the facts noticed the story and contradicted him. Joan will be (and knows she will be) contradicted by sources (anonymous or named, now or later) if she is making things up.

              In short, the risk/benefit rewards are different for both and, if nothing else, she has seen enough fabricated stories blow up in journalists’ face (Blair, Brian Williams, etc., etc.) to know it would be really stupid to make things up in this situation. Which is not to say it is impossible that she has, but it has to be seen as less likely fabricated than not fabricated.

              Could she have gone rogue at the end of her career? It’s possible, but why over this story?

          4. Well, if you say so Orin, then I guess that ends the debate.

    2. They call unsupported narratives that you nevertheless insist people to inquire into a conspiracy theory.

      1. The “unsupported narrative” is the CNN story.

        1. CNN does it’s job and protects its sources. They are not fabulists – that would be a major scandal. And the Court would probably push back.

          1. That doesn’t make the narrative supported.

            1. So you just disbelieve every story you read in the newspaper?

              1. Well, I believe some and disbelieve others. If I have doubts and the paper supports its reporting, I can always verify it. But if the paper says something like, “sources familiar say X,” and I think, “X sounds like bullshit,” then there’s not really much I can do, is there?

                That’s why it doesn’t work for you to say that people who have doubts about the story are making unsupported claims. It’s on CNN to support its claims.

              2. I distrust any story based on unnamed sources on principle.

          2. I don’t think CNN is actually doing its job here. She’s not really reporting reliable information, and, additionally, as Prof. Kerr points out, very little of this was newsworthy anyway.

            1. Court gossip is part of any government beat – office politics make for political policy.

              How do you know the relationship is not reliable?

              1. Really, because I have heard that earlier reports of hers are inaccurate, and because some of the things she reports do not make a lot of sense.

                But also because the tone of what she is reporting suggests she is getting one side of the story.

                1. ‘CNN is not doing its job here’ and its reporting is ‘unreliable’ . . . because ‘I have heard that earlier reports of hers are inaccurate?’

                  1. It’s on her and CNN to show that the reporting is reliable, not on Dilan to show that it isn’t.

      2. You mean like how the left calls everything “racist” without any factual support or reality?

        1. My problem with that comment, Jimmy, is “the left” is misleadingly ambiguous. Someone could not unreasonably read it to mean some indeterminate faction of people who self-identify as left of center. You and I know that every every single man, woman and child who isn’t unconditionally committed to voting Trump and the straight GOP ticket this November (the true and accurate definition of “the left”) calls everyone and everything racist all the time, everywhere and forever. Period.

        2. “You mean like how the left calls everything “racist” without any factual support or reality?”

          This is incorrect. “The left” is very clear that the thoughts and actions of many people are not and can never be racist. Of course, they are also clear that all of the thoughts and actions of other people are racist.

    3. I don’t think anyone serious has disputed Biskupic’s integrity.

      1. I would imagine that most serious people are unable to vouch for her integrity either way.

    4. “Let’s hear a take on this being all a piece of fiction, or at least 90% it being fake.”

      The Trump legacy in action.

      1. The Trump legacy exposing the media as the dishonest shills they have become since Watergate?

  2. I recall the several opinions and dissents issued near the end of the term that the ACA case was issued. Seemed several of those opinions had language that indicated bitter feelings among the justices. I havent seen anything approaching bitter feeling before or since.

    1. Perhaps more bitter than anything during John Roberts’ tenure, but far from the most bitter ever. James McReynolds alone was like 5000 times more bitter.

  3. The only leak I thought was mildly interesting was that Roberts was writing the DACA decision that way from Day 1.

  4. I agree, Roberts isn’t responsible for the other justices. But he is responsible for all the other employees. If one of them is leaking, it is on Roberts to make sure they are fired.

    1. Interviewing them himself would a silly waste of time. But asking the aid of the Marshals, if such was possible through the Court’s authority to order an investigation, they could narrow down a likely culprit.

      1. The proposal to hunt down office-gossip leakers was most disturbing and quite a contrast to popular attitudes of executive branch national-security-related leaks.

        1. Some presidents were notorious for trying to chase down leakers, G.H.W. Bush started to polygraph people left and right. Others, like Trump, seem almost powerless to stop leaks.

          1. Trump’s problem isn’t a “lack of desire” problem.

            It’s a “clenching his fist tighter on a puddle of water” problem.

    2. Contrary to the views expressed by Devin Watkins 2, Roberts is not responsible for all the other employees. If the leak does not come from a Justice, it most likely comes from a law clerk working on the staff of one of the justices. Each justice hires his or her own clerks, and Roberts has absolutely nothing to do with their hiring and firing, except for those on his own staff. He has relatively little contact with the clerks working for other justices, and no good way of investigating them. It’s theoretically possible that the leak came from someone working for the court as a whole, but it’s my understanding that those people don’t know very much, and thus the likelihood that one of them is the source of the leak is, in my view, very small.

      1. Or the leak came from a spouse.

  5. I appreciate this take on Josh’s article, and glad to see it coming from a co-blogger. All of Josh’s posts on these leaks give off the vibe of hurt feelings more than anything. All the discussion of “this is meant to be anti-Kavanaugh” and “this is pro-Roberts” was really just pathetic nonsense. And culminating with the article arguing the manager needs to fix this or get fired is the ultimate Karen take.

    1. Completely agree. Blackman’s whole series of posts about Biskupic’s articles seems to be little more than an extension of his hostility to Roberts arising out of some of the court’s June decisions.

      Whine on, blue June.

    2. In the eyes of a true believer, no sinner is worse than an apostate.

  6. Sensible post, Orin, but,

    I get that everyone is fascinated by any leak from the Supreme Court.

    I doubt you really mean “everyone.”

    1. “Everyone”, as in every single person alive on the planet? Surely not.

      “Everyone” as in every person reading his blog post? Almost certainly.

      Agree, very sensible post and a well argued rebuttal to Blackman’s nonsense.

      For myself, I don’t have a problem with leaks – there’s a good argument to be made that more transparency is beneficial. If you don’t want to know how the sausage is made, don’t read up on it.

  7. One sort of political observer sees leaks as inherently bad, while others see it as the public finding out how their government actually works. I understand why Nixon apologists would be averse to “leaks” to the media. Reagan’s first-term crew was also up to work they objected to having the public have knowledge of.

  8. If we aren’t going to get upset about leaks of the President’s conversations with foreign leaders, then it’s hard to summon much outrage about these leaks.

    If the Supreme Court wants to act like middle school drama queens then let them. Their reputations rest on their decisions not leaks. At least this is more public, I’d be willing to bet in years gone by such leaks were routine but happened across DC poker tables in the White House, and at Senators and cabinet officials residences and weekend retreats.

  9. RBG is the only one who comes out looking good here. She put herself above suspicion by keeping her cancer relapse secret for 4 months.

    She knows how to keep secrets safe.

    1. Justice Ginsburg’s conduct in that regard seems unremarkable in the context of similar circumstances (the Roberts fall, the Kennedy stent, the Rehnquist sedative addiction, the Scalia cornucopia of disease, etc.). In general, she appears to have been much more forthcoming than has been customary among justices with respect to health issues.

  10. We’ve seen worse. This is certainly not like Frankfurter and Douglas engaging in juvenile one-upmanship or the anti-Semite McReynolds leaving the room whenever Brandeis spoke.

  11. Leaks are honest lies perverted by ulterior motive. None are ‘good’.

Please to post comments

A Very Blessing Through All One's Days

Thoughts for the new academic year

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When I was a high school senior looking at schools, I visited Yale for a student weekend. I didn't end up at Yale, but a plaque I saw in the Jonathan Edwards College dining hall made a deep impression on me. I don't know who Robert Chapman Bates was, but his words influenced the course of my life. As I'm about to start my 28th year as a professor (and my 15th at St. John's), his quote still rings true for me. Here it is, for all the other professors who follow this blog. Happy new semester, everyone:

But if you can't help it, do go into teaching

For it is the only profession I know of

In which even discouragement and defeat are sweet;

In which the unattained goal is a reward;

In which the not-complete failure is a triumph

And a very blessing through all one's days.

— Robert Chapman Bates, Fellow of this College 1933-1942

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Many teachers are among America’s best.

    I can name every teacher I had through sixth grade. Some of them saved me from an inadequate home and lousy hometown. I can name most of my teachers through high school. Most of them were good, some were much better.

    America’s progress and greatness are founded on education, especially public education. When our society falters by arranging lesser education for children based on parental circumstance, teachers often respond by buying supplies from their modest compensation.

    There might be a more admirable profession than teaching.

    Might not.

    Thank you, teachers.

    1. I had many fine college professors, one of whom is still a friend four decades later. I had some outstanding law professors, too.

    2. “Teachers often respond by buying supplies from their modest compensation.”

      Dost deem thy vessel needs gilding,
      And the dockyard forbear to supply;
      Place thy hand in thy pocket and gild her,
      There be those who have risen thereby.

  2. Gold there is, and rubies in abundance,
    but lips that speak knowledge are a rare jewel.
    ~Proverbs 20:15

  3. The Deliberate Dumbing Down of America: A Chronological Paper Trail (Conscience Press, Ravenna OH, 1999) by Charlotte Thomson Iserbyt

    With exceptional teachers I was able to overcome the corruption of American government education. Preeminently those inspired by Alexander Meiklejohn.

    1. The book alleges that changes gradually brought into the American public education system work to eliminate the influences of a child’s parents, and mold the child into a member of the proletariat in preparation for a socialist-collectivist world of the future

      Oy.

  4. Disaffected, inconsequential, modern-America-hating clingers are among my favorite culture war casualties — and the Volokh Conspiracy’s target audience!

  5. Robert Chapman Bates was an assistant professor of French.

Please to post comments

New in Newsweek: "A Supreme Court divided cannot stand. John Roberts must step up or step off."

Here are five steps Chief Justice Roberts can take to bring the Court back in order. If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court.

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Last week the Roberts Court reached its nadir. I summarized Joan Biskupic's four-part leak series here. Today, Newsweek has published my editorial. The title is stark, but warranted: A Supreme Court divided cannot stand. John Roberts must step up or step off.

Here is the introduction.

The Supreme Court has turned into a sieve. Last week, CNN reporter Joan Biskupic published a fourpart series that revealed the high court's private deliberations. Even worse, the leaks were designed to advance specific narratives about which justices are strong and which are weak. Chief Justice John G. Roberts is all-powerful. Justice Neil Gorsuch appears decisive. Justice Brett Kavanaugh looks weak and ineffective. And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition. We do not know who leaked the information to the press. It could have been the justices, their law clerks or even allies outside the Court. Frankly, it doesn't matter. These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. There is only one person who can restore order to the Court: Chief Justice Roberts.

Alas, I doubt the George W. Bush appointee is up to the task. Roberts fancies himself the second coming of the great Chief Justice John Marshall. Not even close. Instead, now he more closely resembles one of his lesser-known predecessors, Chief Justice Warren Burger. In 1979, Bob Woodward and Scott Armstrong published the groundbreaking book, The Brethren. The reporters interviewed several of the justices and hundreds of Court staff to peel back the curtain. They revealed internal Court squabbles, painted some of the justices as partisans and highlighted Burger's inept leadership. This book tore the justices apart and created distrust for decades. Burger, an ill-suited chief justice, could do nothing to heal those wounds. Roberts now faces an even greater crisis of confidence. Unless he can rise to the occasion, and plug these leaks, the Roberts Court will tear itself apart. A Supreme Court divided cannot stand. If Roberts cannot unite the Court, he must leave it.

I offer five specific steps Chief Justice Roberts can take to bring the Court back in order. Here are the highlights:

  1. "First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. "
  2. "Second, after the chief justice publicly denounces the leaks, he must bring his colleagues on board.
  3. "Third, after all of the justices agree to condemn the leaks, Roberts must meet with his colleagues, one at a time. He should personally ask them whether they spoke to Biskupic or authorized someone to speak on their behalf—expressly or impliedly."
  4. "Fourth, Roberts should talk to every law clerk, staff member and employee of the Court, one at a time. Unlike the justices, they can be fired."
  5. "Fifth, and finally, all of the justices should then pledge that for the next term, in the midst of a presidential election, there will be no disclosures."

And here is the conclusion:

If by next July, Roberts cannot step up to this challenge—either through his own ineptitude or his own malfeasance—then he should step down from the Court. I don't reach this conclusion lightly. But leadership matters even more than jurisprudence. Roberts continually frustrates me with his calculating approach to deciding cases. Indeed, this never-ending balancing act may have contributed to the toxic climate among the justices. Yet, I can live with Roberts' frustrating legal reasoning—it will have a short shelf-life. Most justices are forgotten as soon as they retire, and their precedents fade just as quickly. Roberts will suffer that fate, sooner or later.

However, I cannot abide by a crumbling Supreme Court. I would much rather have a competent chief justice who I constantly disagree with, but who can manage the Court, than a failed chief justice who sometimes writes decisions I partially approve of while the Court tears itself apart. An occasional five to four victory, which throws crumbs to the Right, is not enough to sit by idly as a whirlwind demolishes the marble palace from the inside. And I lay down this marker knowing full well that President Joe Biden will likely nominate Roberts' replacement. Chief Justice Merrick Garland, anyone?

This op-ed will be controversial. But I hope it begins a process for the Court to bring itself back into order. I cannot abide by the status quo, which will rip the Court apart.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. A low point for the Supreme Court? Or a high point for Josh’s ego?

    1. It’s a cold day in hell, but I agree with captcrisis here.

      1. And I agree with both of you.

        Blackman can criticize Roberts, of course, but saying the Chief Justice has to do what Blackman says or else resign is absurd self-flattery.

        So is Blackman’s interpretation of the leaks. Maybe the leakers have the objectives he imagines, or maybe not.

        Maybe, “These leaks have no doubt destroyed trust and camaraderie on the Court. Relationships will become distant, and the workplace will become even more toxic. ” Maybe not.

        Go back to telling the court how to manage seating for oral arguments. That comes across as (only slightly) less arrogant.

        1. Josh Blackman goes to war against Chief Justice Roberts!

          Once more unto the breach, dear friends, once more;
          Or close the wall up with our English dead!
          In peace there’s nothing so becomes a man,
          As modest stillness and humility;
          But when the blast of war blows in our ears,
          Then imitate the action of the tiger:
          Stiffen the sinews, conjure up the blood,
          Disguise fair nature with hard-favoured rage:
          Then lend the eye a terrible aspect;

        2. I’m amused by the apotheosis of arrogance himself — bernard11 — castigating Josh Blackman for “arrogance.”

        3. So, Blackman appears to be building a consensus here. What surprises me is that The Cato Institute and his law school concur in his analysis. (c:

          Anyway, while I’d be thrilled to see Biden appoint a replacement Chief Justice, I doubt that will happen. I also doubt Blackman will still advocate for his resignation a year from now regardless of what happens.

          1. Pure comedy option would be Roberts citing this editorial and stepping down in January.

      2. Ditto. I guess Josh sees a mole, thus a mole hill, but nobody else does, let alone a mountain.

        1. Oh, nice one!

  2. The only thing worse than a news headline that asks a question (the answer is always “no”) is a headline declaring that someone “must” do something (you and what army?)

    1. A majority vote of the House and 2/3 vote of the Senate.

      1. 2/3 of the Senate can’t agree when to break for lunch.

        1. The circumstances in which more than a simple majority is required in the Senate are increasingly limited . . .

  3. It’s not whether Josh Blackman “can live with” Robert’s faulty legal reasoning and lack of leadership leading to a crumbling Supreme Court, it’s whether America can.

    1. Relax. I expect Chief Justice Roberts to be a valuable contributor to the Obama Court. And not always by dissent.

      1. Obama’s ego is to big to be a SCOTUS justice. Not enough opportunity to make money off his fame too.

        That said, I’m sure Roberts will continue to see-saw back and forth.

        1. My experience with former Pres. Obama seems to conflict with yours. How many times have you met him?

  4. And your standing to issue this ultimatum to the Chief Justice of the United States is what, Professor?

    1. He is an American citizen.

      What more “standing” does one need to criticize a public official?

      1. And he’s not burning buildings or blinding cops, either…

      2. I didn’t criticize Prof. Blackman for his opinion (although I don’t agree with it either).

        I’m criticizing him for his self-aggrandized tone, which seems to presume that there’s some reason for the Chief Justice to comport himself in accordance with Prof. Blackman’s prescription and ultimatum, through and including his resignation for a life appointment during good behavior.

        I like Prof. Blackman, but I think he’s just shot off one of his own toes and displayed an astonishing tin ear.

        1. Then he’s not the only one with a tin ear, Beldar. I deeply respect Blackman’s analysis, even when I don’t agree with everything he says. He knows more about the Supreme Court than any of the commenters here.

          1. He certainly knows more about the Supreme Court than some of the commenters here. I’m not sure what your warrant is for claiming he’s the most knowledgeable.

          2. I don’t mind the presentation of contemporary events through a very conservative lens. But when his historical analysis is wildly inaccurate and skewed by his attempt to support some modern conservative or pro-Trumpian argument, that’s objectionable.

        2. Do you similarly criticize Democrats and other left leaning pundits when they make “demands” of Trump and/or McConnell?

          1. Beldar has been offering informed, conservative criticism of Democrats since before you burned your first cross.

      3. To criticize is one thing, but it is not the same thing as demanding that officials act as directed or resign.

        1. But is he pulling down statues of defeated enemies?

        2. “To criticize is one thing, but it is not the same thing as demanding that officials act as directed or resign.”

          “Demand” is common political rhetoric.

  5. Roberts fancies himself the second coming of the great Chief Justice John Marshall.

    Link, please?

    1. Roberts is trying to save the “system” from abrupt or disruptive outcomes. He finds a clever way to save the Affordable Care Act. He joins in a cute way to redefine “sex” in Bostock (rather than vote with the minority and let Ginsburg choose the opinion’s author). He stalls Trump’s efforts to change an Obama executive order (creating the appearance that some presidents are more equal than others).
      His opinions and positions may work for lawyers coming from the elite law schools, but the seem cynical to most of the rest of us. We start to see that the law is just a power game and that the people in charge can make the law do anything they want. The devil does NOT get the protection of the law. Critical Legal Studies are the guiding philosophy at the Supreme Court.

      1. No link. Didn’t read. Waste of time, waste of pixels & bandwidth.

  6. If there is such a thing as “The Greater American Self-Expanding Ego Contest”, Josh just won it.

  7. Are you sure you are not just writing this article because you are overly partisan and you feel betrayed that CJ Roberts isn’t as partisan as you had believed? This article would be more believable if it was from one of the respectable bloggers on this site, but in the context of your other articles it is clear what your goal is: delegitimize the Roberts court after the “blue” opinions (your words) were issued.

    1. In an alternate universe where Roberts voted with the liberals at conference but moved to the conservatives on several cases, this post would be about Roberts’s courage and leadership in the face of difficult times.

    2. Josh Blackman has been a critic of the Chief Justice for many years. This is not new.

      Blackman partisan? This accusation says more about you than it does about him.

      1. It’s not really an accusation, it’s more of an observation based on everything he writes.

      2. He’s very clearly partisan, but to me that’s not really a negative thing. It’s just something to keep in mind while reading his stuff. I usually like him as a challenge to my preconceived ideas.

        1. That’s actually why I read this blog, but not for this particular writer. The other bloggers engage in really solid legal analysis and make you think about their points, and even though they are mostly conservative/libertarian conclusions they are not beating you over the head in a partisan way like this writer does. Volokh and other writers have changed my mind on a lot of issues. Blackman feels like Fox news commentary.

    3. “Are you sure you are not just writing this article because you are overly partisan and you feel betrayed that CJ Roberts isn’t as partisan as you had believed?”

      Didn’t I accuse someone else of this motivation just a couple of days ago. I believe I was corrected at that time by being told that nobody was assuming Roberts was a partisan, because Ann Coulter didn’t trust him to be partisan enough.

  8. Welcome to 2012, when many people realized Roberts was destroying to Court to “save” it. And leaks have nothing to do with it.

    If Roberts follows the advice above, i hope each other justice tells Roberts to screw off when he tries to interrogate them.

    1. What are the legal implications of justices having a fistfight?
      Would the DC code apply — could they be arrested, and by whom?

  9. “Justice Elena Kagan lurks in the background”

    It was widely rumored that she was a lesbian, and I’m wondering about the partner being behind this. Or perhaps Roberts’ wife.

    This strikes me as coming from a partner/spouse — neither a justice nor a clerk.

      1. Forget it, Noscitur. It’s Dr. Ed.

      2. I’m merely suggesting that the source(s) may be neither a justice nor a clerk.

        1. So why bring up “rumors” about someone being a lesbian?

          1. Makes you wonder if Dr. Ed is a lesbian.

            1. Have you heard any rumors?

              1. I’m not sure whether it would be better or worse for women if Dr. Ed were a lesbian.

        2. 1. Is there any basis for such a suggestion?
          2. If the leaks originated from a “partner/spouse” instead of directly from a clerk or justice, would that change anything about how we should base them?
          3. What does such a possibility have to do with the putative “wide[spread] rumor[s]” that Justice Kagan is gay?

          1. So what? Her sexuality has zero relevance.

            1. Except to explain a female significant other.

    1. Dr. Ed, whenever I think you can’t top yourself, you do.

    2. I think Sotomayor is a lesbian too.

      1. And there’s another one.

    3. Please repeat your “rumor,” but this time add some fictional event at uMass. My Dr. Ed comment bingo card needs just one more spot for me to win.

      1. Well played, Mr. Hook.

      2. Maybe it’s some kind of quiz-show-type scam, but as far as I can tell, everyone’s Dr. Ed comment bingo card is one spot away from winning.

  10. There’s a lot of things I could say about this, but I want to focus on the bizarre way you talk about Kagan.

    “And Justice Elena Kagan lurks in the background, eager to lend a helping hand to form a moderate coalition.”

    “And in the background, Justice Kagan hovers as a helpful mediator.”

    Lurk? Hover? She’s not some kind of witch or spectral spirit who possesses Roberts, dude. She’s not hiding. Why make it sound so menacing?

    1. Any conspiracy theorist will tell you about hidden forces lurking in the shadows, regardless of what conspiracy they think they’re illuminating. It’s the same thing whether they’re trying to sell a theory that the State Department is full of Communists or that the DOJ is full of Democrats.

  11. JOSH BLACKMAN is a constitutional law professor at the South Texas College of Law Houston

    Is it too much to ask that such a professor be familiar with the term of appointment for Supreme Court Justice?

    This column reeks of arrogance. John Roberts doesn’t have to do anything, and neither do any of the other Justices.

    1. I’d say your criticism “reeks of arrogance.”

      1. All you have posted on here are empty attacks on anyone who doesn’t like this editorial.

        That’s not how you defend a piece of work.

    2. “Is it too much to ask that such a professor be familiar with the term of appointment for Supreme Court Justice? ”

      Can you say “Samuel Chase”?

      1. Can you say “Samuel Chase”?

        I tried. Turns out I can.

        1. Maybe you have to say it three times in front of a mirror and then your favorite or most hated (or both) Justice continues to stay on the Court for life anyway.

  12. This argument fails to consider the possibility that Roberts was the leak and the leaks were designed to advance Roberts’ own agenda.

    Roberts seems to think that he is the White Knight of the Supreme Court in these partisan times, but he more like Don Quixote.

      1. It’s always one of those females.

        Hey Ed, what are your thoughts on the 19th Amendment?

        1. Now, now. That seems completely unnecesary Sarc. Ed didn’t mention anything negative about women.

          1. He’s speculating without evidence that the leaks came from Roberts’ wife.

            1. And you accused him without evidence of being biased against women also including any a red herring in those accusations.

              1. Now that you mention it, without any implications, or assumptions about what your answer is, what is your opinion about the 19th?

                1. You secretly want me to type that I think women are the reason why we have big government as government has become a substitute for men. And that if we deny women the right to vote that will put them in their proper place. Right? That is the kind of juice you desire to reinforce the dark side of the narrative.

                  1. Looks like you are all for women voting. Good.

                    Because I don’t have a dark side narrative – a Manichean universe is the right’s thing.

                  2. “You secretly want me to type that I think women are the reason why we have big government as government has become a substitute for men. And that if we deny women the right to vote that will put them in their proper place. Right? That is the kind of juice you desire to reinforce the dark side of the narrative.”

                    I’d just get a kick out of watching Aktenberg sue you for plagiarism.

      2. “Or his wife….”
        Why are you trying to bring Dulcinea into this? Anyway, they were not married.

  13. Kagan is Blackman’s Soros.

    1. I was trying to be a bit more charitable, but it’s hard to disagree with this.

  14. The Supreme Court has been divided, with 5-4 decisions on lots of major issues, for at least 30 years.

    Kennedy’s replacement by Roberts as the swing vote merely continued a dynamic that has been effect for decades. Lawrence v. texas was 5-4. Bowers v. Hardwick was also 5-4, trh other way. It’s been like that for a long time.

    If it stood for 30 years, why is it that it can’t stand for another year?

    Has Newsweek endorsed court-packing? If one wants to take extraordinary measures, perhaps it’s inevitable that one will try to fabricate some crisis or other to “justify” doing so.

    I often disagree with Supreme Court.

    1. Major social changes are being mandated by a 5 to 4 majority. So the law is whatever a majority of the Supreme Court says it is. It the Court decides that Jews are not human beings then that is the law of the land.

      If the Court rules that government officials must deny recognition/benefits/status to entities that do not support same sex marriage or trans rights, then that is the law of the land. If that happens (and that is what liberals tried to do with the Bob Jones case in the 70s, except using racial discrimination instead of gay/trans discrmination), then governments will be able to deny tax exempt status to nonconforming groups. This will put a lot of pressure on certain religious groups that will either conform to the new law or lose their tax exemptions and even their right to exist. States will be able to cancel their corporate charters. They will be unable to own or transfer property. A lot of progressives would love this. They hate religious groups and have been trying to change 501(c)(3) to remove religious charities from the list of charitable/exempt entities.

      1. If only there was some other branch of government that could influence the law of the land.

      2. I certainly disagree with various supreme court decisions, and have been doing so for many years. There’s nothing new about that. It’s been going on for a long time. This year isn’t really any different in that respect.

      3. Yes, if the Supreme Court wanted to, it could cause a lot of trouble in any number of ways.

        Similarly, the other branches of government.

        Indeed, one of them is causing a lot of trouble even as we speak.

        Telling the parade of imaginary horrors you choose are largely fantastical tales of future conservative victimization. ‘They’re gonna oppress the hell out of you’ is really becoming the right-wing lodestone these days.

    2. Lawrence v. Texas was 6-3.

  15. Legal community: This is interesting, but not terribly persuasive.
    Rest of world: Oh yeah, I skipped that article, do not think of Supreme Court much at all, and those supposed leaks sound completely inconsequential.

  16. I have an interesting and somewhat related question.

    Why is it that when the chief justice seat is vacant the president appoints someone completely new to fill that seat rather than promoting one of the sitting justices?

    1. The president can and has done both, as was the case with the CJ before Roberts, Renquist.

    2. Probably depends on who is on the bench at the time and whether (s)he wants to have to deal with two confirmation hearings.

    3. Because the new justice is usually on the young side, as SC justices go, and will reign for a long time as chief justice.

      Rhenquist, an older justice already on the SC, appointed to chief justice, is a rare exception.

      1. More precisely, of the 17 Chief Justices of the United States, 3 (William Rehnquist, Harlan Fiske Stone, and Edward Douglass White) were associate justices when they were appointed, and 2 others (Charles Evans Hughes and John Rutledge) had previously served on the Supreme Court but were in different positions at the time of their nominations.

  17. Newsweek? I remember there used to be a magazine by that name, I wonder what happened to it.

  18. Shouldn’t you be focusing your effort on verifying if this is an actual piece of journalism or just fictional agit prop? My money is on none of this is based off of any real leak.

    1. I’m thinking someone’s spouse.

  19. The Dude abides. Blackman? Not so much.

  20. I have seen the future of conservative legal academia, and its name is Josh Blackman.

    I actually feel sorry for right-wingers.*

    * Just for a minute, though..

  21. Prof. Blackman has persuaded me that Supreme Court secrecy probably should end. The Court is a public institution, funded by taxpayers, who should be entitled to know its workings. Certain public employees’ preference for lack of accountability seems a paltry reason to ignore the ‘knowledge is good’ rule.

    Thank you for the enlightenment, Prof. Blackman.

  22. I wouldn’t have heard of Biskupic’s reporting if Blackman hadn’t blogged about it, and I still haven’t read it because it seems like the sort of stuff that would only be of interest to a fanatical follower of the Supreme Court. It would take a lot more evidence than Blackman has provided to convince me that the leaks will harm the operation of the Court.

  23. I cannot abide by the status quo,

    Won’t someone please think of the third-tier toilet law professors??????????


  24. “First, the chief justice must immediately issue a public statement, on his own behalf, about the leaks. “

    He can do that if wants to.

    “Second, after the chief justice publicly denounces the leaks, he must bring his colleagues on board.

    How?

    “Third, after all of the justices agree to condemn the leaks, Roberts must meet with his colleagues, one at a time. He should personally ask them whether they spoke to Biskupic or authorized someone to speak on their behalf—expressly or impliedly.”

    Is he the Chief Justice, or the vice-principal? What if they say it’s none of his business who they talk to, which, by the way, it isn’t? What if the leaks don’t bother them?

    “Fourth, Roberts should talk to every law clerk, staff member and employee of the Court, one at a time. Unlike the justices, they can be fired.”

    About what?

    “Fifth, and finally, all of the justices should then pledge that for the next term, in the midst of a presidential election, there will be no disclosures.”

    This is ridiculous. If the leaks don’t come from a Justice what good does it do? And how is it in Roberts’ power to make the other Justices sign some sort of pledge?

    Wouldn’t it be silly if Roberts did a bunch of this stuff, and turned out to be the leaker?

    And to top it off, why does Blackman think that Roberts, whatever he thinks about the leaks, needs his advice on what to do about them?

    1. Well, I do think that these leaks (if they’re real) are a pretty major breach of how the court should be functioning, and as the primus inter pares it’s incumbent on the chief justice to shut them down. If the justices are leaking, he should use his leadership skills to persuade them to stop; if the justices are on board and the leakers are employees, the court needs to make it clear that it has a zero tolerance policy for such misconduct.

      On the other hand, 1. If Roberts hasn’t figured this out on his own, I doubt that Prof. Blackman is going to change his mind (and, of course, if Roberts is himself the leaker then it’s all pretty pointless anyway); and 2. Blackman’s breathless line-by-line analyses of the tawdry details only exacerbates the problem (and would be even worse if he had the influence he pretends to).

  25. None of this is surprising. Roberts is the chief justice and the swing vote, so of course he has influence. Of course the liberals are going to be willing to sign on to Gorsuch’s reasoning when he votes with them, just as they previously often signed on to Scalia’s. Of course Kagan, who has excellent writing skills and a mindset somewhat in tune with Roberts’, is going to have influence. Of course Kavanaugh, as the new Justice on the block, is going to start out lower on the influence totem pole.

    None of this seems even surprising, let alone “we can’t go on like this anymore” horrible.

  26. Roberts’ balancing act to preserve the establishment comes across as a prime example of the manager mentality and approach to the law. He seems to read the law and precedents in a convoluted way to justify the outcome he wants for the instant case instead of interpreting law and precedents in order to create a theory/approach that will work the best in future cases. This kind of ad hoc approach to cases suggests he was influenced by critical legal studies: judges decide what they want the outcome to be then pick and choose precedents to justify their opinion. We end up with the court acting as a super legislature imposing its version of aspirational laws on the country.
    So people in the country now how elites in their state capitals and the national capital creating sets of laws…society rules based on what the elites WANT us to be and do, instead of basing laws on what we actually are doing. The laws have less and less reference to the ordinary person. Some of us are pleased with the changes, but we don’t realize that the courts are spending their credibility and that each new set of aspirational laws has less and less legitimacy.

    1. By “elites,” I gather you mean educated, credentialed, reasoning, accomplished, decent, modern people?

  27. This episode caused me to check what had become of Newsweek. It appears to have followed United Press International — also once a legitimate, respected newsgathering operation — into a perverse netherworld, a feeding-at-the-fringe zombie wearing a misappropriated (but lawfully purchased) name.

    Josh Hammer as opinion editor? Were Charlie Kirk and Benny Johnson too principled to take the job?

  28. Because no other part of the government ever leaks at all, right?

  29. “This op-ed will be controversial. But I hope it begins a process for the Court to bring itself back into order. I cannot abide by the status quo, which will rip the Court apart.”

    That’s comedy gold all by itself. So serious, Josh. You sound like you think you just nailed the 95 theses to the Supreme Court doors.

    But this is in Newsweek. And it’s but one thesis that relies a bit too heavily on Kagan lurking, hovering, and otherwise menacing from the background.

    1. From the sublimely comedic (possible lesbian) “Kagan lurks, hovering…” to the calorie-free childish “ZooMass”, the freaking language goes on, and on.
      The Bard sleeps well tonight.

  30. Sorry NOVA I slightly misquoted you

    1. You’re good. “calorie-free childish ‘ZooMass’ captures it perfectly. The Bard does, indeed, sleep well.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: August 3, 1994

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8/3/1994: Justice Stephen Breyer takes oath.

Justice Stephen Breyer

 

Police

Connecticut Passes Law Curbing Qualified Immunity—but with Loopholes

The law is a step in the right direction, but has significant limitations, that should be a warning sign for future reform efforts.

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On Friday, Connecticut became the second state to pass a law limiting qualified immunity, the doctrine that shields police officers and other public employees from most liability for violating constitutional and statutory rights. Unfortunately, unlike the much stronger reform law adopted by Colorado in June, the new Connecticut law has severe limitations. Nick Sibilla of the Institute for Justice has a helpful discussion in Forbes:

Under HB 6004, "no police officer, acting alone or in conspiracy with another, shall deprive any person or class of persons" of their rights enshrined in the Connecticut Constitution's Declaration of Rights, the state's equivalent of the U.S. Bill of Rights. Anyone who has had their rights violated by a police officer can then sue them for damages in civil court…

Unfortunately, the new law contains multiple loopholes that undermine its effectiveness. First and foremost, HB 6004 will grant police officers immunity if they "had an objectively good faith belief that [their] conduct did not violate the law." Without clearly defining either "objectively" or "good faith belief," this carve-out threatens to block far too many victims from obtaining justice they deserve.

It's also completely unnecessary. Even if this exemption were eliminated, since HB 6004 requires indemnification for all officers who don't act maliciously, the vast majority of police wouldn't have to pay a dime if they violated someone's constitutional rights.

Second, HB 6004 will let victims who win be eligible to collect attorney's fees (which can quickly balloon), but only if the officer's actions were "deliberate, wilful, or committed with reckless indifference." That provision is much more limited than Colorado's police immunity reform, which guarantees attorney's fees to any "prevailing plaintiff." Third, Connecticut's new law only applies to police officers, and not the thousands of other government officials throughout the state.

The "good faith" exception is particularly problematic, because it could incentivize "hear no evil, see no evil" behavior by police departments. If police are not told that certain types of dubious practices are illegal—or, perhaps even told they are appropriate—they could well plausibly have a "good faith belief" that illegal tactics are perfectly fine, and thus get immunity. Under the Colorado law, by contrast, the good-faith exception only allows the government to indemnify the officer for successful claims against  him or her; it does not forestall liability entirely.

Needless to say, law enforcement agents themselves don't give ordinary citizens any "good faith" exemption from having to obey the law. If  the latter run afoul of the law, they are liable regardless of whether they sincerely believed their conduct was legal. Police should be held to at least the same standards as civilians in that regard.

As with the Colorado law, it is also not clear to what extent the Connecticut law applies to state law enforcement agents work as part of state-federal task forces. In the past, state officers working with the feds in such task forces have been able to claim immunity from state lawsuits by arguing that they should be treated as federal officials, rather than state ones.

As Sibilla explains, the Connecticut law is still a step in the right direction. But its limitations are a warning sign of how state-level qualified immunity reform can be watered down to avoid antagonizing police unions and other law enforcement interest groups. Sibilla  describes how police-union lobbying had an impact on HB 6004, which only barely passed, even in this weakened form.

There is a parallel here to the history post-Kelo eminent domain reform, under which 45 states enacted new reforms limiting state and local governments' power to take private property to promote "economic development." In the wake of the Supreme Court's enormously unpopular 2005 ruling upholding such takings, there was broad support for curbing them, and stat legislatures worked to satisfy it. But much of the resulting legislation was largely toothless, because legislators were able to satisfy public opinion without offending powerful interest groups that benefited from the status quo.

Thanks to widespread political ignorance, most of the public doesn't follow the details of legislation, and therefore can't readily tell the difference between effective reforms and largely cosmetic ones. By contrast, organized interest groups can. Legislatures have incentives to satisfy the former without antagonizing the latter, and that helps explain why many state legislatures passed weak or totally ineffective eminent domain reforms after Kelo.

Post-Kelo reform was far from a total dud. Some twenty states did still pass reforms that significantly limited takings. But it did not achieve as much as it could and should have.

Like eminent domain reform after Kelo, abolishing qualified immunity enjoys widespread public support in the wake of the death of George Floyd and the resulting public focus on police abuses. But, as in the case of eminent domain reform, the devil of qualified immunity is often in the details, and most voters probably know little about them.

It is too early to say whether qualified immunity reform will follow the same pattern as eminent domain reform. So far, we only have two state reform laws, and one of them (Colorado) is quite impressive, while the other has at least achieved some modest progress. Nonetheless, reform advocates should be aware of the dangerous dynamic that can arise when interest groups and legislators can take advantage of public ignorance to water down reform efforts.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Even the Connecticuit law would curb the most egregious conduct, which is the biggest issue with QI. Police union reform and an end to the Drug War are much more important at the end of the day towards curbing the majority of bad cops and unnecessary interactions with police.

  2. “HB 6004 requires indemnification for all officers who don’t act maliciously . . . .”

    So this is basically a plan to mulct the taxpayers (who aren’t paying much attention and are generally ignorant) in order to fund (i) windfall settlements for a handful of people who have ambiguous encounters with police and (ii) attendant payouts to trial lawyers, who are definitely a well-organized interest group (indeed, they seem to have Prof. Somin shilling for them).

    1. Officers get indemnification now.

      1. Exactly. Municipalities are the real parties in interest in all the qualified immunity lawsuits, and the doctrine protects taxpayers from exorbitant payouts. If police activity becomes too expensive for municipalities to maintain, the consequence will be gated communities and private security guards. (Which is probably how most of the Conspirators live now, and how libertarians think everyone should live, but is in fact incompatible with the maintenance of a civilized polity.)

  3. The “good faith” exception is particularly problematic, because it could incentivize “hear no evil, see no evil” behavior by police departments. If police are not told that certain types of dubious practices are illegal—or, perhaps even told they are appropriate—they could well plausibly have a “good faith belief” that illegal tactics are perfectly fine, and thus get immunity.

    That seems like a stretch. The fact that this exception is based on an objective rather than a subjective standard means that an officer will have difficulty taking advantage of it by merely plugging his ears. This provision has to be applied correctly by courts, of course, but that’s true of all legislation.

    1. Considering the way the good faith exception to the 4th amendment’s exclusionary rule is applied, I don’t think it’s a stretch at all.

      When police officers aren’t punished as long as they believed they were right, police departments have no incentive to actually train officers on what is wrong, because knowing something is wrong could create liability.

      The good-faith exception is bad for another reason though. Fundamentally, if your rights were violated, you deserve to be compensated for that. That should be a fundamental principle of a free society. When a democratic society builds a police force to enforce the laws it has decided on, we should all bear an equal share of the costs that come from that.

      The real question is: When someone is treated terribly by the police, who pays the price? Does the poor unlucky sap have to shoulder that burden alone, or does society step in to compensate him/her? The same logic undergirds the 5th amendment right to compensation for takings.

      1. But statute doesn’t say officers shouldn’t be “punished as long as they believed they were right”—that belief also has to be objectively reasonable. (And of course, the goal of a civil cause of action like this is, at least notionally, about compensating victims rather than punishing anyone.)

        The real question is: When someone is treated terribly by the police, who pays the price?

        I’m not aware of any contemplated legislation that purports to offer a cause of action for “being treated terribly”.

        1. I think you’re reading things into the statute that aren’t there. It doesn’t say the belief must be “objectively reasonable.” It simply says “objectively good faith belief” without defining “objectively” or “good faith.”

          A police officer who violated a citizen’s rights as a result of poor training from his department may indeed have had an “objectively good faith belief that [his] conduct did not violate the law.”

          1. If apolice officer violates a citizen’s rights as a result of poor training from his department, then the proper defendant is the agency, not the agent. suing the agent won’t cause the training to be changed, but successfully suing the agency will.

  4. Every Republican in the Connecticut Senate voted to preserve qualified immunity. Every Republican save one in the Connecticut House voted to preserve qualified immunity. The Connecticut Republican Party has signaled that qualified immunity will be a centerpiece of its political efforts aimed toward November.

  5. “ Needless to say, law enforcement agents themselves don’t give ordinary citizens any “good faith” exemption from having to obey the law. If the latter run afoul of the law, they are liable regardless of whether they sincerely believed their conduct was legal. Police should be held to at least the same standards as civilians in that regard.”

    Should then, LEOs be allowed to withdraw from any situation where their intended conduct has not been clearly defined? That is, should Dispatch be routed through Police Union Attorneys?

    1. I think you’ll find they are allowed to since there is no duty for them to do anything.

      https://mises.org/power-market/police-have-no-duty-protect-you-federal-court-affirms-yet-again

      They also could instead of using their “intended” actions use ones that are constitutional. If they can’t intervene without violating the constitution, which is laughable to even consider as a possibility, then no they shouldn’t intervene.

  6. Why anyone would want to be a police officer these days is beyond me. Perhaps that is why department are left recruiting sociopaths and derelicts.

    But I am looking forward to going back to the days of citizen militias enforce the law. The libs are going to love that when it becomes reality after “defund the police”….

    1. Over $100k per year with overtime on a high school education. Lifetime pension of half salary after 20 years of service, going up to 90% of salary after 33 years of service. Add pension spiking and that makes for a real comfortable retirement before the age of 55. That’s one reason why.

      1. What jurisdiction is offering this? Not around me. Pay is maybe $50K plus overtime and benefits for most towns.

        The few guys in my neighborhood who used to be cops said even though the pay is decent the hours and job suck. Holidays, nights, and weekends. On-call sucks too. Could end up pulling a 16 hour shift with no notice. Most of the guys did it when transitioning out of the military as it was an easy job to get and they didn’t need training due to the service. But everyone said after 2-3 years they had enough and moved to the private sector. And this was before the whole “defund the police” movement.

        1. I didn’t say starting pay of $100k. After several years, with overtime.

          I also didn’t say it was a dream job for all. It’s a job that a high school graduate can make a living at and retire at 40 or 45 or 50. If he wants, he can get another job for another 20 years while collecting his pension.

          I’m guessing helping people is also a motivation for some. And you said it, it can be an easy job much of the time.

          It’s the answer to “why”. It should no longer be a question you can’t comprehend the answer to.

          1. Money ain’t everything and money ain’t anything if you end up in jail because an agitator got you on camera or you have a big fat civil judgement against you.

            1. Yes, the infinitesimal number of cops who go to jail do so not because they broke the law but because “agitators” “got them on camera.”

              1. Who needs a rat squad? The honest and pure cops are only afraid of the agitators with cell phones anyway…

            2. There’s always the option to take a step back and not do something wrong. Then no one will get anything on camera.

    2. “Perhaps that is why department are left recruiting sociopaths and derelicts.”

      Or perhaps they WANT the sociopaths and derelicts.

    3. You have causation backwards. If the police weren’t already recruiting sociopaths and derelicts, we wouldn’t need these kinds of controls.

      Note – I am not saying that all cops are sociopaths or derelicts. I am merely acknowledging that some are – and that the good cops have been ineffective at weeding out their bad peers.

      1. Around me they recently started hiring high school graduate. Previously you had to have a college degree, then about maybe 10 years ago you had to at least have an associates. Now straight up high school GED is enough.

        The police chief has said prior to this recruitment is difficult. They rolled out a bunch of programs to make their department look better, but are still stuck with trouble filling the positions.

        1. So you’re saying that recruitment started to be a problem 10 or 15 years ago and that recruiting has gotten harder since. I find it interesting that courts increasingly began applying the doctrine of qualified immunity to cases involving the police use of excessive or deadly force in 2005 and that recruiting has, by your own statement, gotten harder as the Supreme Court has passed down cases making QI stronger. That data seems to contradict your hypothesis.

          1. Maybe you missed my point. Recruiting WAS already hard. I imagine NOW it will be EVEN HARDER.

            Since we still need police, until a suitable alternative is deployed (and I don’t think sending out a social worker to conduct mediation between me and the guy who used force/violence to break into my house is going to cut it) this means that the people signing up for the job are probably going to be attracted to it for the wrong reasons. Money is one thing until you end up on the nightly news with accusations you are a racist thug. Then you lose your job and who is going to hire you after that? Or the guy you got into a tussle with sues you and despite the fact you were trying, by the seat of your pants in a tense situation, to respect the rights of others the court finds the other way. The department insurance company only covers part of the judgement so now you have liens against all your property and paycheck. Who is going to want this job especially after there are many examples out there of former police officers who have been screwed by the system? No one. Or at least no sane person, which is going to be the ultimate problem.

            1. No, I got your point but I think you missed mine. Recruiting was hard and is getting harder but the timing suggests that QI at least partly the cause, not the result.

              While neither I nor anyone else knows the chain of causation, my hypothesis is that QI makes it harder to get rid of bad cops. Stricter QI has made it even harder. The more bad cops who stick around, the more toxic the environment for the good cops and the less attractive the profession is for those who are motivated by the sense of service and mission more than by cash.

              If, on the other hand, you start holding the bad cops accountable (and yes, that means breaking the code of silence which will be very uncomfortable for the good cops who are left), then the departmental culture can change and maybe you’ll finally be able to hold on to the ones who want do the job right.

              You describe it as an active tussle where you’re making decisions by the seat of your pants in a tense situation but these are not close cases. I challenge you to defend the decision to grant QI to the cops who stole $225,000 from an evidence locker or the guy who climbed onto the hood of a car to empty his magazine through the windshield or the cop who released a police dog to attack a suspect who was already laying on the ground, hands at his side or any of the other well-documented examples of abuse.

              Even when victims are allowed to sue, cops enjoy a huge presumption in their favor by juries. And in the tiny minority of cases where the decision goes against the cop, contrary to your assertion, the government almost invariably pays the cost, not the individual cop.

              Yes, we need police. But we need good police and that means fixing the culture. Getting rid of QI will be part of that and eventually will make recruiting easier.

              1. It’s very implausible that policing has gotten worse over recent decades. Objective metrics, such as the number of unarmed people (black and white) shot by police, point in the opposite direction.

    4. If you hate people, enjoy violating them, and want to get paid for doing it, who do you work for?

    5. “Why anyone would want to be a police officer these days is beyond me.”

      One of the only jobs that didn’t evaporate in the pandemic.

  7. Other reforms they should pass:
    – limit police unions to only be able to bargain about wages. Union contracts can’t specify any other rules or provisions.
    – duty to intervene to protect life when another officer engages in life-threatening actions
    – lying in an official report of any kind should result in, at the very least, the officer being immediately fired and ineligible to be rehired in any law enforcement role anywhere in the state

    None of these should be controversial.

    1. Why should police union contracts be different than other public sector contracts? Are state university professors’ unions limited to bargaining about wages?

      1. Pretty sure the last couple of months show why police unions are different than teachers’ unions.

        1. *looks at teachers union demands to reopen in Cali* No, not really.

          1. Case and point – how’s that working for the teachers’ unions?

            Ah. I see.

      2. They shouldn’t. But that’s an even larger uphill battle. One step at a time.

      3. Why should government unions get to bargain against the people at all?

        1. Because the government is big and can bargain between it’s components at arm’s length without issue.

          1. The people did not elect the government unions. If government unions are allowed to bargain against other parts of government, then voters should elect government union officials.

            But this is beside the point of police unions. Police should definitely not be allowed to unionize to negotiate. Their power is too dangerous to allow any aspect of it to be subject to negotiation against the people.

          2. That the government is big is unquestioned. That it can bargain between its components is also clear. That it can do so without issue is the question at hand. You cannot simply assume that point as part of your answer. Especially since rather considerable evidence suggests the contrary.

    2. Limiting bargaining to wages seems a little tight. I’d let unions also negotiate over things like the provision of vests, orthopedic shoes and other protective gear. Medical benefits, too. But not much else.

      Mostly though, I’d like an elimination of the double standards. What’s good enough for the police is good enough for the rest of us. If police are allowed to be ignorant of the law, so should we. If lying to the police is a crime, then the police lying to us should be a crime, too. (Wait, you say. That will make undercover investigations impossible. That’s true. Then lying back to the police should not be a standalone crime.)

    3. “Other reforms they should pass:”

      Should they repeal the whole Constitution to do it, or just the pieces of it that get in the way of reaching your desired end state?

      1. You should read it. Seems like you’re completely unfamiliar with what it says.

        1. It says that people have a right to assemble peaceably and petition their government for a redress of grievances. Seems like you’re the one unfamiliar with the Constitution.

  8. But much of the resulting legislation [on emminent domain reform] was largely toothless, because legislators were able to satisfy public opinion without offending powerful interest groups that benefited from the status quo.

    Which includes the legislators themselves, who will have to come up with the lost revenues, making re-election more difficult.

    1. Krayt: By “lost revenues”, did you mean “campaign contributions”? The government more often loses tax revenues than gains them through eminent domain. Road-building mostly turns productive, tax-paying farm or residential land into tax-consuming asphalt. _Kelo_ razed tax-paying houses and replaced them with … nothing. The granddaddy of all eminent-domain-for-private-development schemes, _Poletown_ increased tax revenues for a while because factories were built over the razed neighborhood, but in the long run, the factories closed and tax payments stopped.

  9. Anytime a situation arises where one person is attempting to force their will on another person conflict may arise. When the police are involved just what limits are imposed on an officer if an alleged law violator refuses to cooperate. The answer is to place the person under arrest and let the DA figure it out. The penalties for resisting arrest must be strengthened, perhaps with mandatory penalties.

    1. The penalties for false arrest must be real.

  10. If ordinary citizens “… run afoul of the law, they are liable regardless of whether they sincerely believed their conduct was legal. Police should be held to at least the same standards as civilians in that regard.”

    Seems pretty obvious, but is apparently controversial. I’ve always been told that “ignorance of the law is no excuse” but I guess that doesn’t apply to the police.

    1. There’s usually a requirement that people be put on notice before they can be held to a legal requirement. A property has to have “No traspassing” signs posted before they can be prosecuted for criminal trespass. This is a holdover from the common-law era where mens rea was required to convict.

  11. “The ‘good faith’ exception is particularly problematic, because it could incentivize ‘hear no evil, see no evil’ behavior by police departments. If police are not told that certain types of dubious practices are illegal—or, perhaps even told they are appropriate—they could well plausibly have a ‘good faith belief’ that illegal tactics are perfectly fine, and thus get immunity. ”

    The indemnity provision works against that. If the agency has a number of successful lawsuits against its members, that they’ve had to pay for, they’re going to demand proper training be adhered to. When I say “a number” I’m assuming that the number is 1, at most 2.

  12. If anyone is truly surprised at the presence of loopholes, seemingly quite large loopholes, who might they be?

    1. “If anyone is truly surprised at the presence of loopholes, seemingly quite large loopholes, who might they be?”

      People who expect politicians to do things that are popular with the people who vote on the occupancy of their office. QI is popular with government agents and their union representatives and the list stops right about there.

Please to post comments

150 Law School Deans ask ABA to require "every law school [to] provide training and education around bias, cultural competence, and anti-racism"

Law schools should be very, very careful before imposing loyalty pledges and flawed social science testing on faculty and students.

|

Yesterday, I wrote about faculty and students being required to take pledges to support certain values, such as diversity and inclusion. These pledges do not define what actions have to be taken to support these values. There are great risks to sign.

Today, I learned that 150 law school deans (including my own) asked the American Bar Association to require "every law school provide training and education around bias, cultural competence, and anti-racism." The letter does not define what "anti-racism" training would consist of.

I suspect many schools will consider requiring students, and perhaps faculty, to take the Harvard University Implicit Bias Test, known as IAT. (The American Bar Association Section on Litigation already promotes the test.)

These tests do not accurately predict racism. The results cannot be replicated on multiple administrations. And there is a very weak correlation between test results and actual behavior. I encourage you to read a lengthy review in Vox (no right-wing rag) about the implicit bias test. Here is an excerpt:

Only the IAT doesn't predict subconscious racial biases, at least based on one test. So one time with the IAT might not tell you much, if anything, about your actual individual views and behavior.

As Lai told me, it's not clear if the test even predicts biased behavior better than explicit measures: "What we don't know is … whether or not the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we would call explicit measures or explicit attitudes."

The big problem with the test is it doesn't only pick up subconscious biases.

"The IAT is impacted by explicit attitudes, not just implicit attitudes," James Jaccard, a New York University researcher who's criticized the IAT, told me. "It is impacted by people's ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?

Professor Brian Leiter (Chicago), whom I tend to disagree with on many things, pithily described the problem with IAT:

[The IAT] doesn't measure implicit bias, and what it does measure doesn't correlate with discriminatory behavior.

Law schools should not impose such a flawed test on their students and faculty.

In the abstract, I don't have any objections to mandatory training I disagree with. For example, we are all required to take Title IX training. I think various aspects of the Title IX regime violate federal law, and other aspects violate the Due Process and Equal Protection Clauses. But I don't have an issue with clicking through an online presentation, and certifying my attendance.

But implicit-bias training is very different. It does not merely seek to convey information. It is designed to extract information, and use that information to force a person reconsider his or her own approach to society. And, students and faculty will not merely need to certify their completion of the course. I fear the reports of these tests may provide basis for further counseling, remediation, and re-education.

If a law school asks you to take a test, and simply certify that you completed the test, the harm is minimal. But if a school demands to know the results of your test, you should decline to take the test. That information can and will be used against you. And challenging the results will provide dispositive proof of bigotry, racism, and fragility. Again, there is no possible dissent from this new orthodoxy.

Our society is moving very, very quickly now. A few years ago, it was considered unthinkable for professional athletes to kneel during the national anthem. Now the handful of players who deign to stand have to explain themselves. Norms that were once well-entrenched are being unsettled rapidly. I understand the desire of law schools to take proactive steps to address pressing racial issues. But we should be very, very careful before we impose loyalty pledges and flawed social science testing on faculty and students. These measures are unlikely to succeed in changing hearts and minds, and are far more likely to backfire, and impede forward progress.

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  1. The New McCarthyism is moving so fast that all its proponents today will be its victims tomorrow. I wonder how its speed compares with the Roman Empire’s conversion from banning Christianity to mandating it (I know very little of that progression other than some Emperor (Constantine?) being associated with it.

    1. It’s worse than McCarthyism. This “anti-racism” push ironically is deeply embedded with racism.

      The bible of “anti-racism” is the book ‘How to Be an Antiracist,’ by Boston University’s Ibram X. Kendi. Its “key concept” is that to remedy the underrepresentation of minority groups, you need to engage in discrimination in the opposite direction — i.e., discriminate against whites. As the book explains,

      “The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”

      Kendi’s axiom is that all racial disparities are discriminatory. He says, “When I see racial disparities, I see racism.”

      But in reality, many racial disparities are not due to racism. For example, Latinos live three years longer than whites, on average, even though doctors don’t discriminate in their favor. Asians make more money than whites, on average. And while blacks make less money than whites, on average, immigrants from African countries like Nigeria actually make more money than whites do.

      Racial disparities exist everywhere in society and the world, often for reasons unrelated to racism, as the black economist Thomas Sowell chronicled in his book Discrimination and Disparities. To abolish racial disparities would require a totalitarian government, notes black economist Glenn Loury.

      Yet Kendi’s tenets are now an article of faith on America’s college campuses. For example, Cornell’s president told her university to read “‘How to Be an Antiracist,’ by National Book Award winner Ibram X. Kendi.”

      As the Supreme Court noted in Richmond v. J.A. Croson Co. (1989) and U.S. v. Armstrong (1996), not all racial disparities are due to racism.

      1. “As the Supreme Court noted in Richmond v. J.A. Croson Co. (1989) and U.S. v. Armstrong (1996), not all racial disparities are due to racism.”

        How many are, Mr. Bader, in your judgment?

        I will understand if you elect not to answer.

        1. One example of a disparity partly based on racism is the higher rate at which black motorists are stopped by police, compared to white motorists. The higher rate is partly due to racial discrimination:

          https://5harad.com/papers/100M-stops.pdf

          On the other hand, the higher black arrest rate for violent crime is overwhelmingly due to the higher black crime rate, not racism. Half of all murders are committed by black people, who are only 13% of the U.S. population.

          Crimes and infractions are not evenly distributed across racial groups, as the Supreme Court noted in United States v. Armstrong, 517 U.S. 456 (1996). As that 8-to-1 Supreme Court ruling noted, there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption was “contradicted by” real world data, in which “more than 90% of” convicted cocaine traffickers “were black” in 1994, and “93.4% of convicted LSD dealers were white.”

          1. The racial profiling of motorists is also BS: “Black drivers speed twice as much as white drivers, and speed at reckless levels even more. Blacks are actually stopped less than their speeding behavior would predict—they are 23 percent of those stopped.”

            See: https://www.city-journal.org/html/racial-profiling-myth-debunked-12244.html

            1. I haven’t read that pdf, probably won’t, but how exactly do they measure race of speeding vehicles? Sounds like a circular argument to me — they stop more blacks for speeding, therefore more blacks speed. Unless they’ve got some really accurate race classification going on with radar guns and speed cameras, I don’t see how they can have any such statistics except from cars they’ve actually stopped.

              1. Good question, and while I don’t know the methodology of the study, it satisfied the US DOJ — and it was NOT based on cars that were stopped.

                One possible way would be photo radar and looking up the registered owner of the vehicle, many (not all) states record race as part of driver info.

              2. NJ DOT used cameras mounted over lanes on I95. They measured speed using distance and time. There was some lower threshold for speeding — 15mph over, or something like that.

                The study counted, where possible, the speeders’ ethnicities. No traffic stops were involved.

                Blacks were significantly over represented.

          2. The local news did an undercover special on a-holes that illegally park in handicap spots about a year ago. They spent a day sitting in a van watching people without handicap placards illegally parking. Each time they jumped out of the van and questioned the person. If the person did not move their car they alerted the police who would come and ticket it.

            Well, there was one common denominator about everyone that illegally parked in this suburban shopping center. (I’m sure you guessed it.) And that got them in trouble for “targeting minorities” etc. The news editor defended the work at the time saying they didn’t edit out any encounter. They included everyone who didn’t move their car in the final cut. They just happened to all have similar characteristics. After more outrage the news finally recanted and apologized. Doesn’t change the reality of the situation though…

      2. “Yet Kendi’s tenets are now an article of faith on America’s college campuses. ”

        Not on my campus. One example — and there are probably 17 examples — doesn’t really justify the generalization.

  2. This is truly terrifying because, unlike medicine, there is no mandate that a lawyer represent a client (until a new lawyer takes the case).

    This is Orwellian….

    1. And the other side of this: No one will admit that a vastly disproportionate percentage of the Kampus Kangaroo Korts are Black male students being accused by White female students.

      FERPA prevents anyone from saying anything publicly, but we all know this is happening…..

      1. Ed, you don’t have the credibility to put forth an unsupported fact and claim that we all know it is true.

        1. Actually, I do.

          Over the past 30 years, I have gained the trust of a lot of academic administrators and they have often told me things that they weren’t supposed to. And they are noticing a lot of Black faces — there’s been no statistical research on this, and no one IHE has a statistically valid population sample (of accused male students) in the first place.

          You can call me all the names you want, but PROVE ME WRONG….

          Put your “social justice” beliefs where they might actually do some good and get someone, somewhere, to mandate some actual research bring done. Even on a state level if not nationally, I think it would be really interesting to get some statistically significant data on the relative accusations.

          Don’t you????

          1. Over the past 30 years, I have gained the trust of a lot of academic administrators and they have often told me things that they weren’t supposed to.

            Uh huh. Your mother told me to tell you to stop making things up online.

          2. Burden’s on you, not me, Ed.

            With your uncontrollable instinct for fabulation and right wing melodrama I do wonder that you can gain anyone’s trust.

            Research that goes looking for a particular problem is bad research.

            1. So said the Jim Crow era voting registrars….

            2. “Burden’s on you, not me, Ed.”

              I would say that the burden’s on the schools to show that their process is fair. And given the lack of transparency, it’s impossible for them to do that.

              1. Ed isn’t saying the process is unfair, TiP. He’s saying blacks can’t stop getting accused of rape on campus.

                Read especially carefully when defending Ed.

                1. Oh, Ed will say the process is unfair, too — I call them Kampus Kangaroo Korts for a reason.

                  And some of the racial disparity issue has made the public record — see: https://reason.com/2017/09/14/we-need-to-talk-about-black-students-bei/

                  “In the 2013–14 academic year, 4.2 percent of Colgate’s students were black. According to the university’s records, in that year black male students were accused of 50 percent of the sexual violations reported to the university, and they made up 40 percent of the students formally adjudicated.”

                  The underlying data was not statically significant, but this is disturbing….

                  1. Not helping your credibility there, chief.

                    1. He’s not helping his credibility by linking to evidence?

                      Ironically, this relates back to the subject of the OP: Defending yourself is evidence of guilt…

                    2. Even he admits it’s not statistically significant, Brett.

                    3. He’s not helping his credibility by linking to evidence?

                      Not when he admits that his evidence isn’t actually probative, no. (In general, Dr. Ed’s links tend to refute his claims rather than bolster them, although he often doesn’t save you the time of actually admitting as much in the comments).

                      Ironically, this relates back to the subject of the OP: Defending yourself is evidence of guilt…

                      No, being a serial fabulist is evidence that your unverifiable claims shouldn’t be taken seriously.

                      Now, unless you’re telling people which door to open in a logic puzzle, it’s hard work to be wrong about absolutely everything, and Dr. Ed certainly doesn’t seem like he has the intellectual horsepower to pull it off. So I suppose it’s likely that from time to time he’ll come up with some stuff that’s true, if only from sheer exhaustion or incompetence. But without some significant corroboration, I’m not going to accept that any given comment is among hem.

                    4. “Not when he admits that his evidence isn’t actually probative, no.”

                      George Floyd’s death isn’t statistically significant, either. (n=1)

                      Just because your evidence isn’t statistically significant doesn’t mean that it isn’t relevant — it indicates the need for statistically significant data.

                    5. That’s quite a new thesis.

                      Point is, you shouldn’t shoot your mouth off as though an anecdote were generalizable.

                    6. Here is more evidence. Noteworthy in the article is how difficult it is to obtain evidence.

                      https://www.theatlantic.com/education/archive/2017/09/the-question-of-race-in-campus-sexual-assault-cases/539361/

  3. Amazed how you took “training on bias and anti-racism” and turned it into loyalty oaths and testing. Quite a slope you slipped on there.

    1. That quote does not appear in the letter or the post. What the letter seeks is “training around bias, cultural competence, and anti-racism [emphasis added].” “Around” is a peculiar word choice.

    2. ‘Words have only one obvious meaning! Theres no such thing as codewords! Stop assuming the worst something!’ says the guy who probably turns right around the next moment and fully supports a side that tries to erase the word ‘blacklist’ and ‘plantation’ and punishes people who ‘misgender’ and talks about bias and antiracism while pulling down statues and throwing molotov cocktails

      1. Accusing NateC of throwing moltov cocktails is quite a move there, Amos.

  4. Many many years ago I used IAT in conjunction with shoot / don’t-shoot drills. As I recall, the IAT combined blacks and whites with guns and not-guns to illustrate the delay of decision making.

  5. This post makes quite a leap from “training and education around bias, cultural competence, and anti-racism” to taking the IAT and all sorts of re-education camp musings.

    I will say I went and took the test and it seems silly to me. I’m dubious that fractional-second variations in response times really mean very much.

    1. Bernard,
      The test is worst than silly. In general it is a gross intrusion into one’s privacy by the relevant institution. As chair of professional prize committees and as a member of faculty search committees, it has been suggested every time that I take the IAT. I looked at this “test.” and found the questions so intrusive that I would never have given my university of professional society the list of my answers even to the questions that were not loaded. or seriously biased to begin with.
      Fortunately I was never asked to remove myself from any of the committees.
      However, I do not see JB as making much of a just. At least suggesting the IAT is to commonplace to say it is a reach.

      1. Is the IAT bad? Yeah. It was all the rage like 3 years ago but has been, if not debunked, called into question.

        But it has nothing to do with the ask Blackman has posted about. Blackman is speculating wildly and then being outraged about what he’s imagined.

        It’s pathetic self-validating rageaholic behavior, common among fringe Internet commenters. You’d think Blackman would be above that, but…

        1. Blackman is speculating wildly and then being outraged about what he’s imagined.

          Exactly right.

        2. ??? Firstly, “called into question” would be a massive understatement.

          Otherwise, what, pray tell, is the purpose of administrating such a test? You tell every person they are racist and then???

          1. There is no test being administered Allutz!

            1. They are calling for one to be…

              1. Nope. Just education and training.

                The test is just something Blackman speculated about and then wrote a bunch as though it was a new requirement.

  6. You’re shook about your own pure speculation.

  7. Here is the problem: professional licensure. They are attempting to use professional licensure of attorneys as a whip to get anyone who wants to practice law be forced to take their classes in left wing progspeak and progthought. Almost every state in the country requires ABA accredited law school graduation for sitting for their state bar exams. Requiring these classes for ABA certification essentially means that prospective lawyers must take them in order to be licensed by the various states as lawyers.

    The good news is that law schools are filled with prospective lawyers eager to try out their new found knowledge. That means that this will almost certainly be litigated across the country as a fairly blatant violation of the 1st Amdt (made applicable to the states via the 14th Amdt).

    1. How is a required course a 1stA violation, even at a public school?

      1. Because it is required for state licensure, and has more to do with politics than practicing law.

        1. Bruce, that is what the Jennifer Keeton case was all about.
          https://www.youtube.com/watch?v=fWZO_zehR9w

      2. It amounts to making a set of beliefs a requirement for practicing a profession. (It should not matter whether the beliefs are labeled as a religion, they amount to the same thing.)

        1. And as bad as that is, the worse problem is that it amounts to denying those who do not hold those beliefs legal representation.

          This isn’t about unpopular people being denied the ability to practice law (as bad as that is) as much as it is the worse issue of denying a segment of the population their Constitutional right to representation….

      3. Let me add that the required classes appear to be nothing more than indoctrination with left wing gobbly gook.

      4. “…faculty and students being required to take pledges to support certain values, such as diversity and inclusion…”

    2. Bruce, it’s even worse than that.

      While I think that racists, Black or White, are A-holes, they are entitled to legal advocacy. It goes all the way back to John Adams defending the British soldiers in the Boston Massacre.

      With the (small “s”) state increasingly substituting civil process for criminal (where said “state” is required to find/provide counsel for the defendant), the situation becomes one where unpopular people are no longer able to obtain legal representation.

      And what the left fails to realize is that has historically led to a violent overthrow of the courts….

      1. News flash: threats of terrorism should never factor into anyone’s policy choices. And yet you keep bringing them up again and again.

        It seems there is nothing that in your mind doesn’t lead to right-wing reactionary violence.

        Not by you, of course. You’re just voicing your concern. Over and over.
        Threats by proxy like this just make you look sweaty.

        1. There is a very big difference between knowledge of history and having a background in Political Science and making “terrorist threats.”

          History has documented that no court or judicial system has long survived after it has lost the respect of the majority of the people subject to it. It will be forced to rely on inexorably draconian sanctions until said sanctions either exceed the logistical abilities of the (small “s”) state and/or exceed the willingness of the state’s actors to impose.

          An example of the former is the 55 MPH speed limit, and example of the latter is the fall of the Berlin Wall. The DDR troops might have been willing to shoot a few of their fellow Germans, but not a few thousand of them….

          There was a time in this country, not that long ago, when this distinction was well known. Sadly, it apparently no longer is.

          1. Oh please. You’re giving concern trolling a bad name.

            1. “Um, you might not want to jump off that cliff, there are rocks at the bottom.”

              “How dare you threaten to smash me against rocks!”

              1. This isn’t gravity, it’s right-wing terrorism.

                That distinction is why it’s not nature, it’s a weasley proxy threat.

                1. Oh, really? And if I told you it would be a bad idea to walk through certain neighborhoods of Detroit at night, would I be threatening to mug you? Pointing out any kind of danger is a threat?

                  What Ed is explaining is exactly why the Democrats’ gun control push in the 90’s resulted in Waco. Any real effort to enforce laws that don’t have the support of the majority of people has to evolve into terror, as authorities try to compensate for low probability of being caught with frightening consequences if you are.

                  Eventually the authorities either have to give up, or they push too hard and provoke a kickback.

                  The question is why governments get into this mindset where they try to impose these sorts of laws. I think it derives from a lack of respect for the people who they’re being imposed on, a belief their opinions simply shouldn’t be allowed to matter.

                  1. Right-wing terrorism is also not a mugging.

                    What Ed and you appear to be explaining is that if the US government doesn’t do what y’all like on a panoply of issues from guns to immigration to masks to freaking potential ABA training programs someone is going to start killing.

                    I and America don’t take kindly to bullies so fuck you and bring it on.

          2. May I point out that American law enforcement proved, just a few months ago, that they are quite willing to shoot at thousands of their fellow Americans. Sure, they were “less lethal” stuff. That have maimed, sterilized, caused permanent blindness, and so-on.

            So if this is your concern? Too late.

  8. ” Our society is moving very, very quickly now. ”

    ‘Our society is moving very, very quickly now, brethren. We need to slow this whole thing down, I tell you . . . why, if we are not careful here, one day these slaves will join the Italian and the Irishman, and all will act just like the white man, and some will be bold enough to intermarry with our daughters without so much as the father’s permission, and the homosexual will not hide but will expect to be treated with respect, any many will give them that respect, and women — our fair, church-going women — some of our women will own property and vote, and — no, no, this is true, I say, do not doubt me, for I foresee it — yes, friends, Jesus will be cast out of the schools and our children will be taught that they are cousins to monkeys, as if Satan his own self were at the front of the classroom, and you should know by now where all of this leads . . . the “liberals” will control all of America’s strong schools and they shall be victorious in what will be known as an American culture war!’

    — Jedidiah Ezekiel Calvin Blackman, circa 1865

    1. A great example of both red herring and strawman in the same post. Impressive AK.

    2. Kirkland, read _The Turner Diaries._

      And then realize that someone, possibly sober at the time, actually wrote that.

      Just sayin….

      1. Ed, threats of violence against an Internet poster like RAK via some old white supremacist fantasy are just so, so, sad.

        1. Where was the threat? I didn’t see one. He suggested AK read a book.

          You do like to make up these “threats” don’t you Sarc?

          1. And for the record, _The Turner Diaries_ scare the daylights out of me. Like I said, someone, possibly even sober, actually wrote that — and others apparently believe it.

            It doesn’t mean that I do….

            1. You can be sober and freaking nuts. And attract other nuts.

              Right wing nutsos have always been with us, and never been a statistical threat. I do not anticipate that changing. And if it does, the political movement that will be wrecked will be the American right.

            2. Unintended Consequences is a better book, if you ask me. Though the ending is awfully optimistic.

              1. Yeah, and you also like Camp of Saints.
                Right-wing terrorist fan-fiction is not predictive, Brett and Ed.

          2. Jimmy, I guess you haven’t heard of the book, then?

            Saying the Turner Diaries could come true is absolutely invoking right-wing violence against RAK.

            1. Ed said this for the record:

              “Kirkland, read _The Turner Diaries._

              And then realize that someone, possibly sober at the time, actually wrote that.

              Just sayin….”

              He didn’t say anything about The Turner Diaries coming true or wishing they would happen. He just said “read the book…”

              You are reading into what someone said which is your SOP. He didn’t in the least imply a threat. You are just assuming one because, well, I guess that is how you roll…

              1. What do you think ‘someone sober wrote that’ other than to take it’s violent fantasies seriously?

                You can’t do reading comprehension. Or, more likely, you’re trolling.

                1. Apparently I lack your skills of crime prediction and intent reading on a simple internet comment. To me it seems like he suggested someone read a book. That is not a threat.

                  1. You’re not this massively stupid, so I presume you’re trolling.

                2. For the record, I wrote: “someone, possibly sober at the time,…”
                  NOT “someone sober wrote that”

                  I was actually implying the opposite….

              2. Also read Ed’s further comment below.

                He’s not helping your case.

            2. Part of it already has — it was just a different group of nuts that flew a plane into the Pentagon….

      2. How is that civility project going, Prof. Volokh?

        Are you genuinely still claiming you have not engaged in viewpoint-controlled censorship — for example, banning a commenter for making fun of conservatives, removing posts for use of “c&p succ@r,” and warning against use of “sl@ck j@w’ while enabling conservatives to threaten violence and use vile slurs?

        Zyklon showers for liberals, gassing liberal judges, shooting liberals in the face upon opening a front door, liberals face-down in landfills, evocation of the Turner Diaries’ extermination of liberals — all expressed without censorship at the Volokh Conspiracy. This blog’s “civility” compass must be a movement conservative thing.

        After an apology for banning Artie Ray, I would mention this record less often.

        1. Kirkland, have you ever heard of reading everyone’s literature so you have some idea of what they are thinking?

          Notwithstanding that, reading the above makes me think you are confusing the use of vulgarities and ad hominems with viewpoint-based censorship. There’s a difference….

          1. We all know what white supremacists are thinking. We don’t need a 1978 novel to tell us that.

            You, however, seem to be taking the book as prophetic…

            1. And in your world, everyone to the political right of Vladimir Lenin is a white supremacist….

              1. No, but the Turner Diaries sure as heck is.

  9. I’m fine with the left continuing to push hard on this. There is still plenty of left before the election and would rather the extreme fascist left show their hand now then right after the election. So keep it up liberals!

    1. “So keep it up liberals!”

      Up a shade better than 8, according to 538.

      Up 7.4, according to the clingers at RCP.

      Up 6, according to the right-wing shills at Rasmussen.

      Up 10-15, according to the highest-rated polls.

      1. Talk to President Hillary about the accuracy of polls….

        1. Talk with Brad Parscale about how well the Trump campaign is doing . . .

          See you in November, clingers.

    2. Jimmy, I’m reminded that Nixon — as corrupt as he was — took 49 states in 1972.

      I don’t think Trump will do that well, but much of “middle America” defends free speech and doesn’t want to see the cops killing people, but has a visceral objection to rioting in the middle of the night…

  10. Who cares what law school deans think? They’re just bureaucrats tasked with making the faculty do the upper administration’s bidding.

    1. Right-wing law professors care.

  11. Indeed – I’m required to complete Micro-aggression training 30-day before the Due-Date, or explain the exceptional circumstances that prevented me from doing so. That’s an online 1hr course, after a 5hr live course – just for good measure. The Exec’s had the 1hr summary course, of course – all of those old white men…

    1. “Micro-aggression training”
      More bullshit leftist indoctrination material

    2. I have enough trouble getting staff to do a 1 hour workshop because they are so busy. I can’t imagine trying to get them to dedicate a whole day to professional development (assuming that they even would find such a subject interesting.)

    3. Truly, a lesser man would buckle under the oppression of this one course among what no doubt is many.

  12. “law school deans (including my own) asked the American Bar Association to require …”

    Why do the Deans need to ask the ABA’s permission? They could simply require it at their own school(s).

    The simplest answer is that the Deans demonstrating their racism via their choice of the ineffectual letter over real, effective change.

    1. Because if the ABA requires it, then any school that doesn’t provide the classes could lose their ABA accreditation, and thus be forced out of business, since their grads would no longer be eligible to sit for the bar exam in most states.

  13. I like how Prof. Blackman took a story with no facts that he knew nothing about and turned it into a rant about the IAT. It’s fine to criticize the IAT, but shouldn’t that wait for an occasion when someone proposed using the IAT?

    1. Well he’s successfully playing pied piper to the comentariat who loves some ‘schools are liberal indoctrination centers’ melodrama.

      1. But universities are liberal indoctrination centers. No one, even on the Left, really contests that reality.

        1. Our strongest schools are operated in the liberal-libertarian mainstream, but there are dozens (and likely hundreds) of low-ranked, shit-quality, conservative-controlled schools.

          They don’t come to mind as much — mostly because these censorship-shackled, nonsense-teaching schools have lousy reputations, nondescript faculties, lackluster alumni, and downscale students — but they exist.

          Don’t hate liberals for having all of the best schools. Liberals do not prevent conservatives from operating strong schools. The only things stopping conservatives from operating strong schools are superstition, ignorance, disdain of science, bigotry, dogma, and backwardness.

          1. Kirkland, half of your supposedly “strongest schools” won’t be here in a decade.

            1. Which ones do you have in mind?

            2. I gather your “Great Awakening” delusion features the closure of Harvard, Yale, Columbia, Penn, NYU, Cal-Berkeley, Michigan, Pittsburgh, Wisconsin, and Cal-Irvine . . . and the corresponding ascendance of Liberty, Ave Maria, Hillsdale, Regent, Wheaton, Grove City, Biola, Bob Jones, Oral Roberts, and Ouachita Baptist to occupy their rightful places as America’s best and most-respected schools?

              Mocking clingers gets easier every day.

        2. “No one, even on the Left, really contests that reality.”

          The issue might not be to contest it, but to offer a little more nuance. Research indicates that college student views of political issues are changed or reinforced more by their interactions with other students than with faculty. Students arriving at college, even for the first time, are usually adults with relatively well-formed political views, so any “indoctrination” they encounter is pretty much ineffective. The largest effect that I have seen in the research literature is that both conservative and liberal leaning students develop more tolerance of one another over their college years. That may be a good thing, and it may be a bad thing.

          And, the kind “indoctrination” that is referenced in such complaints generally refers to a relatively small swath of a university. When Business is the most common major in America, and large numbers of students major in STEM fields, the radical leftist indoctrination in, say, a Gender Studies program reaches less than 1% of all students, and is largely preaching to the choir there.

          1. “Research indicates that college student views of political issues are changed or reinforced more by their interactions with other students than with faculty. ”

            Well, sure, but you can curate those interactions by making the ones you don’t like highly perilous. The students coming in may have a normal distribution of political views, but they’re not all equally free to safely reveal them.

            1. Because college Republicans are not a common thing.

              The right-wing confirmation bias drumbeat working as intended, I see.

            2. Brett,

              It’s kinda like the former Soviet Union — people know what they are supposed to think so they pretend to think it. In reality, they don’t have any political values at all, other than how they can subvert they system (and others) to their personal gain.

              It’s really kinda scary — I know that there have always been ruthlessly self-centered persons but the Millennial Generation appear not to believe in anything other than themselves. They have no loyalty to other people or other causes unless it is to their personal benefit.

              Rush Limbaugh made an interesting point the other day — the BLM protests are largely being led by angry White Millennial women — angry because they were told from childhood that the world would revolve around them, and they’ve now learned that it doesn’t.

              I like to remind people that Soviet women *hated* Raisa Gorbacheva, not because of her personality but because she could stay home with her children — and they couldn’t. (She was the wife of Soviet leader Mikhail Gorbachev, they add an “a” to the spelling of the husband’s name to mean “wife of.”)

              But the larger issue is that higher ed is going to implode — even without the Wuhan Virus, it was going to happen as there aren’t enough bodies to fill all the seats. The true bomb will hit in 2026 when the children not born in 2008 won’t be turning 18…

            3. “The students coming in may have a normal distribution of political views, but they’re not all equally free to safely reveal them.”

              I doubt that they do have a normal distribution of political views, since a majority of younger people embrace liberal/progressive views — the point was that “indoctrination” is largely a fantasy of the Right. In fact, it is to be expected — when ideological groups sense that they are loosing power, they respond by imagining all sorts of demonic forces, conspiracies, cabals, etc.

              It is indeed borne out by research that college students are less likely to feel comfortable expressing conservative views, but that is a normal and every-day experience of participating in a group that tends to hold different beliefs. I keep my mouth shut when visiting my very conservative in-laws.

              The more important issue might be whether faculty suppress alternative views from students, and while we occasionally hear of some obnoxious faculty member ridiculing a conservative student or worse, taking some kind of action against such a student, these are rare cases, and tend to be restricted to a small realm of marginal disciplines. I’ve been teaching at major research universities for decades, and have only come across anything like that once, though it is also true that students feel pressure even when it might be applied.

          2. “And, the kind “indoctrination” that is referenced in such complaints generally refers to a relatively small swath of a university.”

            No, I’ve seen research finding that the admin is even more biased than the faculty, and that’s the dormitories and everything else.
            Also do not forget the Gen Ed requirements.

            And don’t underestimate the indoctrination from K-12 that these students are arriving with.

            1. 1) Biased doesn’t mean indoctrination.
              2) Membership in the Democratic Party does not make you biased
              3) Gen Ed requirements are not liberal indoctrination.

              1. Academia is so far to the left that no small percentage of them consider the Democratic Party to be a bastion of right-wing conservationism — consider AOC to be a moderate as they are to the left of even *her*.

                1. Then show the research that demonstrates that.

                2. I’ve been a university faculty member for decades, and have a very different experience than you describe — so let me second the call for any documentation of this claim.

  14. I had to take a loyalty oath both times I was sworn into a bar.

  15. The IAT is also ridiculously easy for takers to consciously game.

  16. Vox in 2017. Has the author been cancelled for his “racist” article yet? lol

  17. 2+2=5. It is coming faster than we want. This is an example of bad compliance. An administrator picks a test, any test, so that he or she can show compliance with a mandated rule to solve a problem. The fact that the test is ineffective does not matter; what matters is that it is an easy way to show compliance with the rule. This kind of false compliance is one of the matters destroying our country.

    1. There is no test. Blackman is making it up.

  18. So Harvard’s implicit bias test is bad. Got it. What bugs me about the article is that law school deans are asking an outsider to impose changes that they can make themselves. If “anti-racism” training is a good thing, just implement it. You’re the Dean, for gods’ sake. Don’t waste time whining to the ABA.

    And when the training you pick crashes and burns, accept responsibility and fix it rather than blame the outsiders that you lobbied for.

    1. Could it be that they realize that it inherently will crash & burn, so they need the ABA’s monopoly to implement it?

      And I wonder how much longer said monopoly will continue to exist.

      Remember that law school really isn’t needed in the way it was in the 1980’s when you had to learn a complicated library system.

  19. Good education on culture and racism would admit valid disputes on definitions and recognize that cultures will always compete, blend, and adapt. Cognoscenti thinking they have a lock on cultural competence are demonstrating a special kind of incompetence.

  20. Maybe it would be better to start by trying to provide students with some basic instruction on how to do such routine things as draft a complaint, prepare interrogatories and other discovery requests, conduct a deposition, try simple criminal and civil cases, and file a notice of appeal.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: August 2, 1923

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8/2/1923: President Calvin Coolidge's Inauguration. He would appoint Justice Harlan Fiske Stone to the Supreme Court.

President Calvin Coolidge

 

Free Speech

Ninth Circuit Affirms Dismissal of Stormy Daniels' Libel Lawsuit Against President Trump

Trump's Tweet ("A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!") was opinion, and thus not actionable.

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From yesterday's Clifford v. Trump, decided by Chief Judge Sidney Thomas, Judge Kim McLane Wardlaw, and Jacqueline Nguyen:

As alleged in the complaint, Ms. Clifford began an intimate relationship with Mr. Trump in 2006. Five years later, in 2011, Ms. Clifford agreed to cooperate with a magazine that intended to publish a story about the relationship. Ms. Clifford alleges that a few weeks after she agreed to assist with the magazine story, she was approached by an unknown man in a Las Vegas parking lot who told her "Leave Trump alone. Forget the story," and threatened that harm would come to her if she continued to cooperate with the magazine. Ultimately, the story was not published.

In 2018, after Mr. Trump became President, Ms. Clifford went public with her account of this incident. With the assistance of a sketch artist, she prepared a composite sketch of the man from the parking lot, which was disseminated publicly.

Ms. Clifford's defamation claim is based on a tweet Mr. Trump published about the composite sketch. Shortly after the sketch was released, a Twitter user unrelated to the parties here tweeted the sketch juxtaposed with a photograph of Ms. Clifford's ex-husband, with a mocking message suggesting that the two men resembled one another. Mr. Trump retweeted this tweet, adding his own message: "A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!"

The two tweets appeared together as depicted below:

Ms. Clifford responded by filing this suit, alleging that Mr. Trump's tweet is defamatory….

"[S]tatements that are not verifiable as false are not defamatory. And even when a statement is verifiable, it cannot give rise to liability if the entire context in which it was made discloses that it was not intended to assert a fact." … [S]tatements that fail either test—"verifiability or context"—[are treated] as "opinion[s]." The determination of whether a statement is "reasonably capable of a defamatory meaning" focuses on how the statement would be interpreted by an "objectively reasonable reader."

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