Demands that Cornell Fire Clinical Law Prof William Jacobson for Criticizing Black Lives Matter Movement

Prof. Jacobson, best known as the founder of the Legal Insurrection blog, has the details here.

The good news is that he reports that Dean Eduardo Peñalver "properly has defended my writings as protected within my academic freedom, although he strongly disagrees with my views." While protecting faculty's academic freedom is indeed proper, and in fact the perhaps the most important task a dean is charged with in regard to his faculty, nowadays such action cannot always be assumed, so good for Dean Peñalver.

The bad news, reflecting the current toxic environment for faculty dissenters from politically-correct progressivism:

My clinical faculty colleagues, apparently in consultation witht the Black Law Students Association, drafted and then published in the Cornell Sun on June 9 a letter denouncing "commentators, some of them attached to Ivy League Institutions, who are leading a smear campaign against Black Lives Matter." While I am not mentioned by name, based on what I've seen BLSA and possibly others were told it was about me. The letter is absurd name-calling, distorting and even misquoting my writings, to the extent it purports to be about me. According to a document I've seen, the letter was shared with these students before it was published in the Cornell Sun.

None of the 21 signatories, some of whom I'd worked closely with for over a decade and who I considered friends, had the common decency to approach me with any concerns. Instead they ran to the Cornell Sun while virtue signaling to students behind the scenes that this was a denunciation of me. Such is the political environment we live in now at CLS.

And Prof. Jacobson has an appropriate response:

I challenge a representative of those student groups and a faculty member of their choosing to a public debate at the law school regarding the Black Lives Matter Movement, so that I can present my argument and confront the false allegations in real time rather than having to respond to baseless community email blasts. I ask the law school to arrange an in-person live-streamed debate during fall term, or if for some reason the law school does not have in-person instruction, to arrange a 'virtual' format.

This would be the right way for an academic institution to handle such a dispute. The wrong way was demonstrated by UCLA, as discussed by Eugene Volokh yesterday.

Comments

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

My cynical mind expects that the only way any PC faculty could ever agree to such a debate would be if they could stack the decks before hand, make sure the crowd is rabidly in their favor, make sure the moderator is rabidly in their favor, and drown him out to such an extent that the police (the hated despicable police) have to shut down the debate and blame it on him.

The hallmark of partisans and guerrillas is hit and run tactics, never any set-piece confrontation.

[Dr. Ed]

Exactly. I've seen it done.

[Armchair Lawyer]

It's time for the law school to make a stand here.

Take those faculty that signed such a letter, tell them that their actions and views here in harrassing and demanding someone be fired (for political views) violate the core principles of the institution.

These faculty can be given the opportunity to retract signing the letter, or they can be let go. There are plenty of people who would love to teach at Cornell Law School who can also uphold the core principles of freedom and fair mindedness that Cornell represents.

Bonus. At least 50% of the positions replacing those let go will go to minority and/or women candidates.

[Sarcastr0]

Yes, we need to restrict people's speeches via a loyalty oath lest their speech restrict other people's speech!

I agree there's a problem here, but you're not going to change a culture with a hypocritical sledgehammer.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Sometimes it takes a good Dean with a sledgehammer to stop piss-poor faculty with a collective sledgehammer.

[Sarcastr0]

What sledgehammer do carping faculty members have?

[Armchair Lawyer]

There's no "loyalty oath". Simply a commitment to free and honest discourse. A simple letter from the Dean to the signatories of the letter as follows would suffice. As follows.

"Cornell law school maintains its mission and statement of free and honest discourse of all views, and welcomes the statements by the signatories of this letter in support of the BLM movement and to oppose racism in general as part of this free and honest discourse.

The threats and demands made by the signatories of this letter that demand the firing of professors with opposite views violates this mission statement, and does not represent the qualities that Cornell aims to achieve. We would ask that these threats and demands be retracted, and that an honest full discussion from multiple viewpoints on the subject be emphasized and allowed.

However, we understand the very strong feelings by some of the signatories that may not allow for retraction of their threats and demands. In such a case, we would ask them to sign this letter of resignation, as their views, feelings, and actions do not appear compatible with the mission statement of Cornell for free and honest discourse of all viewpoints. As such, it does not appear possible for them to continue as faculty members.

However, Cornell remains committed to viewpoints of all races and genders, and to alleviate some of the concerns of these individuals, Cornell can promise for every two signatories which resign, Cornell will hire at least 1 female or minority member to replace them. In this was, those who resign can simultaneously help to alleviate the injustice they perceive."

[Sarcastr0]

You want them to sign a thing to behave like you want them to. Hard to see a difference in methods, even if you think you're on the side of angels here.

Your 'honest and free discourse' is cutting out a lot of conversation about what an organization stands for, what speech by employees means, what tone means, etc.

I come down like just about everyone does here in which side is right. But I always find these threads amusing due to the draconian measures people come in touting.

And your sop of 'this will allow Cornell to hire more minorities' is a bit insulting.

[Armchair Lawyer]

I don't want them to sign a thing. Just not to threaten people. Is that too much to ask?

As for the "sop"....isn't that what this whole thing is about?

[Sarcastr0]

The fact that you transparently think this is all BS is not going to go very far in convincing people of your policy proposal.

The burden here is no the administrators. The faculty should be free to threaten and tantrum all they want.

[Armchair Lawyer]

"The faculty should be free to threaten"

Is that what you think free speech is? The freedom to threaten people?

[Sarcastr0]

Yes.

[Armchair Lawyer]

I see Sarcastro joined the Harvey Weinstein school of thought.

"Do this sexually gratifying action for me or else I'll blacklist you"...

It's just freedom of speech, right.

[Sarcastr0]

Don't be silly - that's not what we're talking about here.

The 'threat' here is to complain more.

Look up true threats.

[Armchair Lawyer]

I thought you said free speech was the freedom to threaten people. What went wrong? Harvey wasn't your style?

[Sarcastr0]

Nope. Not what you asked, not what I said.

Glad we cleared that up.

[Armchair Lawyer]

Well, you can see how I misunderstood perhaps. Given this line of conversation. Since, this is what you said.

Me: "Is that what you think free speech is? The freedom to threaten people?"

You: "Yes".

So, perhaps I'll ask again. Do you think free speech is the right to threaten people?

[NToJ]

@Sarcastro,

I think you should tell Armchair Lawyer that if he doesn't stop asking stupid questions, you're going to stop responding to him. Let him stew over that threat.

[Sarcastr0]

You've changed the subject to some pedantic nonsense. The threats you've switched to talking about about are already illegal. You know that. So stop wasting time.

You are advocating for carve out that allows sanctions for speech beyond true threats in the academic setting. Like the speech discussed in the OP.

I think that's an authoritarian imposition of free speech.

What is your response?

[Armchair Lawyer]

I think what is good for the goose is good for the gander.

If the signatories want to use their political power to threaten other people for their speech, then the administration should be willing and able to use it's political power to threaten those signatories.

[Sarcastr0]

Political power via speech versus *administrative* power via loyalty oaths and firings. That's hardly tit for tat.

Not that tit for tat makes good policy. Your justification for your authoritarian policies is not getting stronger.

[Armchair Lawyer]

There's nothing "authoritarian" about insisting on an equal standard for all.

[Sarcastr0]

It's equal now, dude.

[NToJ]

Academic freedom includes the freedom to not share the university's views re: freedom of speech, honest discourse, etc. And you don't answer empty bromides with empty bromides.

[HarryContrary]

Yep.

The appropriate response from the University and CLS brass is a simple “no.” If they feel a need to explain themselves, they need only cite academic freedom, a culture of rigorous debate and Intellectual diversity, etc.

As much as you might like to see the tables turned against the silencers and cancellers, that would do nothing but propel their wretched cause.

[Rev. Arthur L. Kirkland]

Perhaps that, and quit hiring the types of faculty members who precipitate these problems.

[Brett Bellmore]

It needs to be a bit more than a simple "No". "No, and we're putting a notation in your file that you are never, EVER, to be hired by this university, no matter how desperate we might become. And if anybody asks for a reference, we'll warn them off." would be better.

[Armchair Lawyer]

I wish I could agree with you. I sincerely do.

The problem is this. If there are zero reprecussions for these sorts of demands and threats, then there is no risk in making them. Only gain. And if these threats and demands fail 9 times of of 10, but work once, then that's a "win" for those who oppose free speech. And they'll keep doing it.

If you're unwilling to really defend free speech, and unwilling to put in reprecussions for those who attempt to eliminate it, then eventually, by virtue of numbers, it dies.

[NToJ]

"If there are zero reprecussions for these sorts of demands and threats, then there is no risk in making them."

That's the point. What you are describing as "demands and threats" are the very sorts of things we think are protected by academic freedom.

[NToJ]

And free speech, etc.

[Armchair Lawyer]

You think threats are "protected by academic freedom"?

[NToJ]

No, but your question is helpful because it demonstrates you don't know what the issue is here.

First, requesting or demanding that some other person be fired, is not a "threat". A threat is when you threaten the life of a person.

Second, the letter doesn't actually demand that anyone be fired. It's understandable that you might think that, since the OP improvidently framed it that way. But what should have tipped you off is even Professor Jacobson's timid explanation of what the "effort" here is:

"There is an effort underway to get me fired at Cornell Law School, where I’ve worked since November 2007, or if not fired, at least denounced publicly by the school."

What's the "or" doing there? Well the "LETTER TO THE EDITOR" contains no threats at all. For one thing, it doesn't identify a single person at all:

"These commentators are the defenders of institutionalized racism and violence. They are entitled to their viewpoints. We do not name them..."

More importantly, the letter doesn't call for firing at all. It says the signers "stand" with others, that they will "combat hatred by teaching the truth about racial discrimination", and to "equip [their] students with the tools they need to fight for justice and equality as ethically and socially responsible legal professionals." The only "demand" they make is accountability... but not for Professor Jacobson unless they're accusing him of "police violence".

It's a limp, frankly anodyne bit of performance art. It would be impossible for anybody to read the letter and find, in your words, an unprotected "threat" in it.

But let me be clear. If the letter had actually said "We demand that you fire Professor Jacobson for [any reason]" I would still not view this as an unprotected threat. That's just like any other run-of-the-mill expression of opinion that is exactly the sort of thing which enjoys protection in any society that cares about free expression.

[Armchair Lawyer]

First, let me give you the dictionary definition of "threat"

"a statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done."

Yes, you can "threaten" someone with the loss of their job, if they don't do what you want.

Second: It danced on the thin grey line for a threat. It was an "effort" as you put it. There's a lot of implied language there.

Third if the letter had actually said “We demand that you fire Professor Jacobson [for any reason].” Then let's put in a reason. Let's say "We demand that you fire Professor Jacobson because he won't serve our sexual needs, and if you don't fire him, we'll hold a vote to remove you as dean." Would that be a threat?

[NToJ]

@Armchair,

1) The dictionary definition of threat is not where I look to determine the contours of freedom of expression. When we talk about unprotected threats, we're talking about "true threats", which is a term of art and not coextensive with the dictionary definition (which incorporates colloquial use).

2) Even your colloquial use is illogical, and really isn't consistent with the dictionary. If I tell my employee that if I catch them stealing from the office, I will fire them, no one would interpret this as a threat. It could become something like a "threat" (or blackmail) if I tell them to do something illegal or unlawful, or else be fired. But nobody here is demanding that anybody else do something illegal or unlawful.

3) If I tell another person that if they catch their employees stealing from the office, I think they should fire the thieves, that's also not a threat. And that one doesn't even graduate to threat if I tell the person to fire them for an unlawful reason, like "If your underage employees aren't giving you a blowjob, you should fire them." It's despicable, sure, but not a threat.

4) Re: your third formulation, which has absolutely nothing to do with what we're talking about, it might not be a threat.

[Armchair Lawyer]

1) Regarding defining threats...

A. We need to divide between "protecting academic freedom" and "illegal under the law". The two are not co-equal.
B. "True threats" ( a legalism) are broader than simply threats of death. They extend to threats of non-lethal violence, kidnapping, and even potentially to threats to reputation. They typically can be prosecuted under the law.

https://www.law.cornell.edu/uscode/text/18/875

2). Yes, if you tell your employee if she steals again, she will be fired, that is a threat. It is perhaps a legally permitted threat, but it is a threat nonetheless. It can't be interpreted in any other way.

There are many, many types of legally permitted threats. What is permitted, and what isn't, often depends on the content and contexts of the threat, the relative illegality/immorality of the items, and the relative power balance.

3) If you tell another person what they should do, it's not a threat, until you use your power (in whatever context) in order to "persuade" them to do what you want.

To use your example, "If I tell another person that if they catch their employees stealing from the office, I think they should fire the thieves,"...that is not a threat. When you add though "If I tell another person that if they catch their employees stealing from the office, I think they should fire the thieves, and if they don't fire the person I'll inform HR"...That is a threat. Legally permitted, but still a threat.

4) It absolutely is a threat. Whether or not it is a LEGALLY actionable threat is up for debate. But it is academically actionable.

[NToJ]

@Armchair,

1) I get to tell you what I think is protected by academic freedom. You don't get to tell that to me. And I'm telling you that I think academic freedom protection requires protecting speech up to the "true threat" (term of art) boundary. Merely saying "I think someone else should be fired [for thing they did or said that I disagree with]" is not an unprotected "threat", in my view.

2) What you've conspicuously failed to confront is what was said, or implied, in anything pertinent to this discussion, that constitutes something besides a "legally permitted threats" (as defined by you).

3 and 4) I'm no longer interested in having a pedantic discussion with you about the word threat. If we continue this conversation, it will be over solely what specifically you think somebody said that is actionable.

[Armchair Lawyer]

1) Sure, that's a view.

Then the suggested letter where the administration "recommends" the signatories change their statement or be fired is perfectly fine, and not a threat, and perfectly respects the academic freedom of the administration.

[Sarcastr0]

AL, your logic proves way too much.

Just move it outside the academic speech context.

Suddenly Brandenburg Is vastly expanded. After all, if a threat incites 1 time out of 10...we need there to be a price!

Really defending free speech means not censoring those who condemn others with mere words.
YOU are the authoritarian here.

[Sarcastr0]

I cannot tell if you do not understand the contours of free speech, or want them to be moved. Either way what you're asking for is authority coming down on people whose speech you feel harms freedom.

Think on that a moment.

[Krayt]

It's ironic people defended tenure status against the most vile things, but now political disagreements or low-tier rudeness is pushed for termination

People who wanted freedom and tolerance now don't want it when they are in charge. This is a sad lesson not learned again from history.

It's not a small corner of neo Nazi cranks that are the problem. They will never gain ascendancy. It's the problem in the 1930s when they were not tiny. It's the problem in ancient Rome and Greece. In Venezuela and Russia and Turkey, where the crowds cheer on the book burning and silencing and disappearing of opponents.

It's Padme sitting there, watching the Galactic Senate vote emergency powers for the Chancellor, sighing and saying, So this is how liberty dies, with thunderous applause."

It's not a minority of cranks that is the problem historically. It's a gigantic concensus swelling that gets rid of freedom. None dare challenge them.

Dear readers, history says This Means You.

[Sarcastr0]

And the key to dealing with a growing consensus is to become draconian in penalties for all who jump on that bandwagon?

That does not have a very successful history either.

[Dr. Ed]

Sarcastr0, the growing consensus is Joe Sixpack with pitchforks and torches, and history should tell you what happens next.

[Sarcastr0]

Ed, your conservative peoples' revolution nonsense remains as silly as the day you first logged on here.

[Dr. Ed]

Sorry NToJ, you are wrong. Very wrong.

Academic freedom is the freedom to pursue and profess truth as you find it. It is not a license to harass others, and I somehow doubt that you'd support professors demanding students sleep with them to pass their course, or arbitrarily flunking students on the basis of race.

Students also have academic freedom rights -- the original AAUP statement explicitly stated that.

[Voize of Reazon]

Did you read the letter? It contains no demand to fire Jacobson, in fact no demand that Cornell take any action whatsoever. The signers criticized the statements of the unnamed anti-BLM commenters, and publicly announced their opposition, but that all seems pretty clearly in the spirit of "the remedy for objectionable speech is more speech". What do you believe they should be forced to retract?

[Rev. Arthur L. Kirkland]

This mostly just a clinger whining about being called a clinger, and trying to lather the other clingers.

[Finrod]

You keep talking about the turds dangling from your ass, but we don't care.

[Dr. Ed]

No, it's time for SOCIETY to make a stand here.

Law schools hold a monopoly on entry to the only profession explicitly mentioned in the Constitution and hence society ought not tolerate this foolishness.

Further complicating things is the fact that Cornell is a Land Grant College (as is MIT) and I've never seen any ruling, either way, if they are bound by the Constitution (like a public university) because of this.

[NToJ]

"No, it’s time for SOCIETY to make a stand here."

Lets not forget Dude that keeping wildlife, um... an amphibious rodent, for... um, ya know domestic... within the city... that ain't legal either.

[Dave Boz]

It's more likely than not that the signatories of the letter represent "the core principles of the institution."

[Rev. Arthur L. Kirkland]

Thank goodness for true diversity -- a white, male blog defending beleaguered, vestigial bigots against those who dislike racism, gay-bashing, misogyny, and the like.

[David Bernstein]

If only William Jacobson were a member of a minority group that, I don't know, is subject to more hate crimes than any group but blacks, and, hmm, had 1/3 of its members wiped out by genocide in living memory, and, hmm, whose ancestral homeland is constantly subject to genocidal threats, perhaps he would be more sensitive to prejudice. But as a white male, he's just immune from such considerations.

[Sarcastr0]

LOL

[Rev. Arthur L. Kirkland]

Why do some groups targeted during America's successive waves of intolerance and ignorance (often associated with skin color, religion, immigration, or perceived economic pressures) turn on their successors? That is a worthy question.

Italians, Jews, Asians, Catholics, blacks, the Irish, agnostics, gays, Hispanics, Muslims, eastern Europeans, women, other Asians, other Hispanics -- most of America has been targeted over time.

What makes America great is that the bigots don't win, at least not over time. Why would some Italian-Americans, or Catholics, or eastern Europeans, or Jews, having overcome bigotry in America, join those tormenting others today?

The larger point, in my judgment, is that the voices of intolerance and ignorance do not prevail in America. This latest batch of bigots seems nothing special, its reliance on the charms, insights, and integrity of Donald J. Trump notwithstanding. The Republican Party will pay for its embrace and appeasement of bigotry, if
centuries of American history constitute any guide.

Why would members of a group that overcame bigotry enlist in the next wave on the side of the bigots? I wish I knew.

[Armchair Lawyer]

Indeed Rev, bigots like you will be overcome.

[Rev. Arthur L. Kirkland]

You figure you have (or at least have identified) the key to turning the half-century tide of the American culture war to favor conservatives? And against all odds? Please go on . . .

[Jimmy the Dane]

Can't wait for that special sunny day to come, can you Rev?

[Rev. Arthur L. Kirkland]

If you like American progress, there is some sun in every day.

If you're a disaffected clinger . . . not so much.

But at least you guys have the Volokh Conspiracy, and the Conspirators -- who inhabit a lonely fringe in mainstream academia -- have you guys.

[Finrod]

And Donald Trump is still your President.

[Armchair Lawyer]

The "key"?

It's simple. We let people like you keep spouting off. We let your demands to "defund" the police occur. And we let people see the results.

[WuzYoungOnceToo]

Blue wave! Hillary in a landslide!

Dorothy....wake up.

[VinniUSMC]

Criticizing BLM equals racism. Anything that doesn't stick strictly to the liberal dogma is -ist of some sort. Different opinions are not allowed or welcome. Conform or die.

And then there's RAK. Not just a bigot, but an ignorant broken record. Poor Artie.

[Rev. Arthur L. Kirkland]

Artie?

He was banned by a conservative law blog for making fun of conservatives.

A martyr whose sacrifice revealed the ugly hypocrisy of conservatives with respect to free expression.

[VinniUSMC]

And yet, here you are Artie, making fun of and insulting conservatives, day in and day out. Strange how that works.

[Rev. Arthur L. Kirkland]

Perhaps the banning of Artie was a teaching moment?

[WuzYoungOnceToo]

It might have been, were you capable of learning.

[Rev. Arthur L. Kirkland]

Perhaps it was the proprietor who might have learned something (about censorship, hypocrisy, and judgment).

But you should continue to stick up for Prof. Volokh. Clingers need to stick together.

[epsilon given]

The irony of your hatred of bigots is this: "Italians, Jews, Asians, Catholics, blacks, the Irish, agnostics, gays, Hispanics, Muslims, eastern Europeans, women, other Asians, other Hispanics — most of America has been targeted over time." And it is the Democrats, more than anyone else, who have done that targeting. And you can still see the hatred: if any one person who has at least one of those characteristics dares give one idea that strays slightly from the party line, the bigoted slurs attacking them come out in full force.

It must be hard to be a Democrat these days, having to keep their bigotry bottled up like that, until a suitable target presents itself.

"Why would members of a group that overcame bigotry enlist in the next wave on the side of the bigots? I wish I knew."

I wish I knew, too, but RINOs will be RINOS, I guess.

In the meantime, I'm half afraid that bigots will win the White House this next election. But who knows? Maybe they'll lose, and President Trump will win re-election after all....

[Dr. Ed]

If only the members of that minority group understood that the Democrats are not their friends....

Who put the US Embassy in Jerusalem?
Not who promised to, but who actually did it?

[WuzYoungOnceToo]

We all know you're a dolt, but I'm still surprised that hat you weren't capable of reading beyond "Hillary Clinton".

[WuzYoungOnceToo]

Sorry...this somehow ended up as a reply to the wrong post. The commenting system here is very erratic when used on a mobile device.

[Jimmy the Dane]

I hope the Left keeps pushing this into the end of June. They are already in crazy, wacky land. It is getting close to popcorn time.

[Brett Bellmore]

I like to think the left has over-played their hand, but if they haven't, and they actually win this fall, it's going to get very ugly in the US. Who am I kidding? It's going to get very ugly regardless.

They rioted at Trump's inauguration; Can you imagine what it's going to be like if he's reelected?

[Jimmy the Dane]

And it probably won't be any better if he isn't re-elected either. I don't think the roughly 40% that have unwavering support for Trump are just going to sit back and not think that the media and left robbed him of his first four years in office along with another term.

If the constant pushing from the left has taught the right anything, it is that we are in a Total War situation. And I don't see a path out of this whole pickle that isn't very very messy.

[Rev. Arthur L. Kirkland]

Conservatives have been getting stomped in America for 50 years. First, that trajectory isn't likely to change. Second, if it took the clingers that long to recognize the situation, ouch . . . very ouch.

[WuzYoungOnceToo]

Yeah, I think about that every time I see Pres. Hillary Clinton give a SotU speech, or see Senate proceedings being presided over by the Dem. majority leader, or read a decision by the Prog-dominated SCOTUS, or Dem dominance in the combined state legislatures, or....

[Rev. Arthur L. Kirkland]

You figure electing Trump altered the trajectory of the culture war?

You're in a minority that has been ceding ground in America throughout our lifetimes. Your bigotry and backwardness are diminishing in America culture.

Soon enough, not even the three pillars of Republican electoral relevance -- gerrymandering, voter suppression, and structural amplification of yahoo votes in the Senate and Electoral College -- will be enough to keep conservatives competitive in national elections.

Republicans will still lord over our can't-keep-up backwaters, but the culture war is settled, and the good guys have won.

[Finrod]

Donald Trump is still your President, and will continue to be until January 2025. Suck it up, buttercup.

[WuzYoungOnceToo]

You couldn't even manage to read past the name "Hillary" before what's left of your brain short-circuited?

[epsilon given]

When you complain that Republicans are winning for gerrymandering and voter suppression, I can't help but hear how you're just jealous because Republicans are now gerrymandering places Democrats have gerrymandered for *decades*; and you're angry that Republicans are trying to suppress the votes of the dead.

And when you complain about "structural amplification of yahoo votes" in the Senate and Electoral College, all I hear is "Hey, the Constitution is unfair, because it keeps the City folk from lording over all those hick rednecks!"

The fact is, Republicans wouldn't be gerrymandering today if Democrats had continued to win their elections -- and Republicans *are* winning those elections, even with the dead voting -- and if Democrats can't win the Electoral College and the Senate, then maybe it's because they are bigoted against the rural areas, and rural folk have wised up to it.

And Democrats are gradually losing the minority vote, too, because minorities are gradually noticing that all the places that have "structural racism" where "systemic racist police oppression" exists are places that have been run by Democrats for decades.

[HarryContrary]

If Biden wins, he’s going to have no choice but to feed these crocodiles. I loathe Trump and look forward to the day that he’s back in the real estate business...but this whole episode may be cause enough to hold my nose and vote for the creep. At least I know he wouldn’t cede an inch to the marauders. But Biden wouldn’t have a choice. He’d owe them too much.

[Rev. Arthur L. Kirkland]

For whom did you vote in 2016, Harry?

[HarryContrary]

Gov. Johnson

And it wasn’t a difficult choice. The major party candidates were even worse than usual.

I’m not a kneejerk LP voter. I voted for Bush in 2000 and Kerry in ‘04 after Bush showed his authoritarian nature with Iraq, TIA, among other non-starters. Then Barr in ‘08 and Romney in 2012.

[Rev. Arthur L. Kirkland]

That's an interesting pattern. Mostly conservatives. Mostly losers. Not sure how that trajectory leads to Trump, though.

[HarryContrary]

Most of my votes are more “against” than “for.” Nobody who largely sees things as I do will be elected president in my lifetime, if ever. I know full well, when I pull the LP lever, that I’ll be voting for somebody who will get 2 or 3%. So I usually try to vote R or D.

And then it becomes situational as much as ideological. What things are big in the campaign that will most likely either move the football the way I want it moved or keep it moved the way I don’t. And that changes from one cycle to another.

I was (and still am) very relieved that Biden won the Dem nomination. He’s light years better than Sanders. But, as I said, any Dem will have to carry water for these radicals that are taking over cities, demanding all sorts of ridiculous things. And I think that needs to be pushed back.

That makes this a very different election than, say, 2004 when there was no such far-left populist dissident movement afoot.

But we’ll see. Maybe Biden will take a tougher stance against them than the mayors and governors have thus far.

[epsilon given]

We got Trump because Mitt Romney, one of the nicest guys we've had run for the Presidency, was denounced as a racist, a Nazi, and worse -- and Romney folded like a limp noodle.

While Trump is certainly the worst Nazi ever, he at least stands up against the taunts. The Left has doubled down, however, which makes me afraid that someday the electorate is going to say "Fine, do you want a Nazi? We'll vote in a Nazi!"

And then we'll have another Democrat as President.

[Sarcastr0]

Do tell, Jimmy. What will Trump voters do if the country votes wrong?

[Jimmy the Dane]

Probably a lot of what you saw during the current protests, but more in a lockdown protest style.

[Rev. Arthur L. Kirkland]

I predict conservatives will just continue to mutter bitterly and inconsequentially about all of the damned progress, periodically picking their spots to revive some vestigial backwardness or bigotry . . . same as it has been for at least a half-century.

[NToJ]

The country quivers at the thought of a bunch of fat, dyslexic, neckbearded Gravy Seals awkwardly gathering by the dozens. The rest of us will just have to, I don't know, continue going to work and moving on with our lives, like everyone else.

[Dr. Ed]

What if we don't?

What if we say Fire Truck it and quit working?

[NToJ]

I don't know Dr. Ed. What do you think will happen if you quit working?

[Sarcastr0]

Love to see the alt right threatening a general strike.

[Hank Ferrous]

Whodafuck are you kidding? You asshats have been in a prolonged temper tantrum since inevitable hillary failed to win the election. Outrage is your favorite flavor, huff the vehicle of choice for departure, the ends justify the means, and every gods damned thing is 0 sum. It's like dealing w/ developmentally impaired preschoolers.

[NToJ]

I like how all the power here is assumed to be with the "roughly 40% that have unwavering support for Trump" (not true, of course, but whatever), rather than the roughly 50-55% who reel the opposite.

[Dr. Ed]

It's 40% with unwavering support for Trump and another 25% that consider him the less of all evils -- and that comes to 65%.

[NToJ]

The guy didn't even when a plurality of the vote. You can't get to 65% until you crack 47%.

[Rev. Arthur L. Kirkland]

Trump's approval rating is 41 percent.

Other than that, though, great comment . . . and Prof. Volokh thanks you for your service.

[HarryContrary]

Well I don’t approve of him, but could well end up voting for him anyway. A lot will depend on how Biden sounds in the face of all this nonsense. If he’s at all supportive of it, then I’ll vote Trump. If he distances himself, then I’ll vote Biden. I’m not exactly going to be thrilled either way...but that’s nothing new.

[Finrod]

What was Trump's approval rating just before he won the election?

[Noscitur a sociis]

Are you seriously claiming that 65% of the country supports Trump? Even he is rarely that delusional.

[Rev. Arthur L. Kirkland]

They're just sputtering at this point.

[WuzYoungOnceToo]

You honestly (yeah, I know..you don't do anything honestly) believe that anyone was saying to themselves a month ago, "You know, I just don't think the lives of black people are of any value"...but have suddenly decided that they are?

[epsilon given]

The ones who say "Black Lives Matter" are also the ones sitting in white suburban neighborhoods celebrating and encouraging the burning down and looting of black businesses in black neighborhoods.

But it's the Republicans who are racist because reasons.

[RickCaird]

Jacobson's opponents will not show. They know BLM it is a Marxist organization that clearly does not care about black lives unless they can make it a cause celebre. The fact they were having demonstrations in Europe gives that whole game away.

[Hyman Rosen]

Does the proper way to handle an academic dispute include accusing your opponents of "virtue signaling" and claiming that petition signatories have signed only out of fear (of falling afoul of "silence = violence")? Or in Klein's case, coming across as an insensitive, dismissive, sarcastic schmuck?

People who tone-police others being shocked when it happens to them. Quelle surprise. What is happening is that a lot of people who are used to pointing out motes in other people's eyes are discovering that people are getting tired of them ignoring the beams in their own.

The behavior of police in general, and towards black people in particular, is a huge problem, and has once again been brought front-and-center to public attention by a callous murder caught on video. This is a moment to be seized in order to bring about reform. People who take the moment as an opportunity to attack those pressing for change aren't going to be seen as some sort of brave defenders of truth, but as people who are deliberately trying to hinder reform.

Not to mention that people have the First Amendment right to sign petitions, demand that people be fired, and to otherwise impose consequences on speakers for viewpoints they find abhorrent. "Tenure" is a relationship between the school and its employee. It doesn't impose an obligation on anyone else.

[WuzYoungOnceToo]

Not to mention that people have the First Amendment right to sign petitions, demand that people be fired, and to otherwise impose consequences on speakers for viewpoints they find abhorrent

So 1A somehow protects the signers of the petition from having consequences imposed on them by the school (even though it doesn't), but it doesn't protect the speech of those whom they are attempting to get the school impose consequences on? I hope you performed an appropriate pre-exercise stretching routine before engaging in those gymnastics.

[Hyman Rosen]

Why do you think signers are protected from the consequences of signing? Or why do you think that I think that? SIgners of petitions and letters get attacked for their views all the time. For example, the "public health experts" who signed the letter approving protests during the pandemic.

[epsilon given]

What change are they pushing for, though? And what good does it to "end racism" (something that's certainly impossible) when the issues are more likely to do with police brutality?

And why is it that outrage only happens when blacks die at the hands of the police? For every black life lost that's been the rallying cry of the Left, there's at least one eerily similar example of a white losing their life in the same way -- but is almost completely ignored. How many black lives could be saved by recognizing both, and calling for a *general* end to police brutality?

And finally, what's up with all these cases where anger is ginned up in examples of force that ultimately are found to be justified? *Particularly* when there are plenty of examples where police *clearly* killed someone unjustly? Both Brown and Martin are examples where their killers genuinely and clearly acted in self defense.

[Jaypd]

Yeah I was on board till I followed the link and read this idiot's conspiracy theory ramblings and now I don't care anymore.

[HarryContrary]

Not much into the whole principle thing, eh? Heck, I’d support this if Jacobsen were a full-throated communist. The cancel culture nonsense needs to stop. It’s anathema to a healthy civilization. Ideas should be challenged, refuted, supported, augmented, etc. But they should never, ever be silenced or punished.

[Finrod]

Precisely. I want stupid and dangerous people to speak freely, that's how we figure out that they're stupid and dangerous.

[M L]

Can you point to where is wrong?

[WuzYoungOnceToo]

So your support for academic freedom of speech is predicated on your approval of the speech.

[Shamie Ervin iv]

I just read about some of Jacobson's achievements. They are laudable, spectacular even. I got a feeling that some of those critics who denounce him are jealous.

Oh, and Prof Bernstein, you got a neat sense of humor.

[Stephen Lathrop]

Notably missing from the OP? Any substance. Guy says they misquoted him. That should be an easy home run. Just re-publish the original, in context, and the misquote. Let us compare.

Or give us a link to, "my writings"—you know, the ones which pissed people off. I am ready to see how reasonable those writings are, and what an embarrassment to Jacobson's baseless detractors. Really, I am. I hate seeing reasonable people misquoted, and unfairly attacked.

As much as I distrust people who charge others are PC, I know what they mean, and don't like the phenomenon. When it exists. But isn't that what the OP should be about—showing it exists with regard to Jacobson?

I am curious to discover some virtuous difference between aggrieved academic conservatism, and aggrieved internet conservatism. Help me out.

[M L]

Apparently you didn't bother to click on the link.

"The impetus for the effort was two posts I wrote at Legal Insurrection regarding the history and tactics of the Black Lives Matter Movement:

Reminder: “Hands up, don’t shoot” is a fabricated narrative from the Michael Brown case (June 4, 2020)
The Bloodletting and Wilding Is Part of An Agenda To Tear Down The Country (June 3, 2020)
Those posts accurately detail the history of how the Black Lives Matters Movement started, and the agenda of the founders which is playing out in the cultural purge and rioting taking place now."

[Dilan Esper]

Except, because Jacobson was busy indulging in racist stereotyping of angry young blacks, he was in fact completely wrong about BLM's tactics.

Again, he is TOTALLY protected by academic freedom. He is also a man who should be thinking about why he got this so wrong.

[Finrod]

[citation needed]

[Bruce Hayden]

It should be noted that Jacobson’s Legal Insurrection blog was instrumental in deconstructing, and discrediting, the “Hands Up, Don’t Shoot” myth, through the extensive work of self defense law expert Andrew Branca, who did the same thing for the Trayvon Martin myths. Branca, in particular, did this with the sort of legal preparation you would expect a trial attorney would bring to the task. He read everything remotely official, watched or read transcripts of every hearing, gavel to gavel, perused the minutia of autopsy reports, etc. These are the foundational myths of the BLM movement, and Jacobson’s blog was key in proving them to have been fake and fraudulently constructed. So, of course, BLM hates him.

[Rev. Arthur L. Kirkland]

It sounds like we should await Andrew Branca's defense of Officer Chauvin's self-defense efforts.

[Bruce Hayden]

Not much out there yet, except for a fairly noncommittal autopsy report from the ME, and Floyd’s record of imprisonment. So far, we know that the neck hold didn’t leave any bruising on his neck, but there was damage to his face. He had just under half the typical fatal dosage level of fentanyl in his system, had had COVID-19, known to damage lungs, and sickling red blood cells (an evolutionary adaption for fighting Malaria) that reduces the efficiency of O2 transportation. He also had Meth and some pot in his urine and blood. He died when his heart stopped, but the ME didn’t specify why. It could have been a result of anoxia resulting possibly from a combination of the fentanyl, COVID-19, and Sickle Cell Anemia. He also had heart issues and diabetes.

The basic problem is that the officers were very likely overcharged, for political reasons. Long run, the 2nd degree murder charge is likely to fail because it is essentially felony murder where the underlying felony has to be distinct. It wasn’t. Besides, given normal police immunities, the neck hold was likely also not a felony. 3rd degree murder in MN is a depraved mind killing. That is problematic because the neck hold is within policy, and it’s going to be hard to show the intent required. Some level of manslaughter would probably be a better fit.

That all said, the two appear right now to have worked together for a club (rumored to be involved in money laundering)., and that their relationship at times may have been confrontational. That may have made the interaction at least partially personal. And that may increase the probability of a murder conviction.

[Stephen Lathrop]

M L — This is puzzling. I did click on the link, and nothing like you quoted could be found on any of subheads. I tried them all. In fact, the page presented seemed curiously truncated, displaying only what would normally be the top part of web site, with text to follow.

Not saying you have it wrong. Just puzzled why it did not work that way for me.

[M L]

He's right. BLM is based on lies.

[Bruce Hayden]

In particular, as I noted above, Jacobson’s blog helped discredit both the Trayvon Martin and Big Mike Brown myths. Both died from manifestly justified use of deadly force in self defense. Both defendants were easily acquitted, and the Zimmerman defense very likely proved their case beyond a reasonable doubt (reversing the normal burden of proof), and that was well before it was discovered that the prosecution appears to have knowingly committed a fraud on the court by putting a fake ringer girlfriend of Martin on the stand.

[David Nieporent]

You think it's a lie that black lives matter?

[M L]

Of course not.

[WuzYoungOnceToo]

You think it’s a lie that black lives matter?

Given that it's already been explained that the "lie" in question was the "Hand up, don't shoot" narrative (which, you recall, you fell for hook, line and sinker and refused to acknowledge as a lie even long after it was exposed...to this day, I suspect) that gave rise to BLM your statement above is very much a disingenuous attempt as a piss-poor straw man argument.

[HarryContrary]

I think he meant the movement, not the sentiment. There’s a difference.

[Dilan Esper]

Jacobson needs to be backed by his law school as a matter of free speech and academic freedom.

Having said that, if you read his actual posts on BLM, he comes off as, at the least, dead wrong about the current moment, as the protests have become more and more peaceful over time and are persuading the public that black lives do, in fact, matter.

So he didn't violate anyone's rights by speaking out. But he did come off as dumb and probably should think less about his victimhood and more about how he got BLM wrong, probably because of stereotypes he holds about young black radicals who lead protest movements.

[WuzYoungOnceToo]

and are persuading the public that black lives do, in fact, matter

Are you 9 years old or something? There is NOBODY currently be persuaded that "black lives matter" that did not already think they matters 2 months ago.

You accusing anyone of sounding dumb is a hoot.

[WuzYoungOnceToo]

"mattered"

[Sarcastr0]

Polling says otherwise.

I'm working to process the change in attitudes that appear to have happened here. It's not something I expected.

[epsilon given]

"Having said that, if you read his actual posts on BLM, he comes off as, at the least, dead wrong about the current moment, as the protests have become more and more peaceful over time and are persuading the public that black lives do, in fact, matter."

What does it mean to be "dead wrong" about the current moment?

And how many of us who sincerely believe that black lives do, in fact, matter, but are frustrated that due to cutting back of the police, there's going to be more black-on-black murder (as what happened in Furgerson after the riots there), and are deeply dismayed that the riotous destruction of black neighborhoods -- including the loss of black-owned businesses -- is going to result in even more destitution for communities already hampered by poverty?

Why should we consider it "tone deaf" to be frustrated that all this destruction and harm inflicted on black lives is, indeed, the result of anger ginned up on lies and misinformation?

[Bob from Ohio]

My wife's uncle was a professor [non-law] at Cornell who left after the then faculty coddled "anti-war" rioters. Things never change.

[Dr. Ed]

I think Joe Sixpack is getting ready to break out the pitchforks & torches -- unlike in the '60's, the universities no longer hold exclusive access to education.

[Rev. Arthur L. Kirkland]

All-talk clingers -- still seething about all of this damned progress -- are my favorite culture war casualties.

Go back to your fairy tales and leave the reality-based world to your betters.

[Finrod]

Your community-based reality delusions would be cute if they weren't dangerous.

[epsilon given]

Rev, you're welcome to think that burning down black neighborhoods and destroying black-owned businesses over false pretenses is "progress", but only Democrats will consider this to be the case.

Republicans and Libertarians are dismayed at seeing the setbacks of black communities that are likely to reverberate for decades.

[Rev. Arthur L. Kirkland]

Cornell is still a great school, operated by and for the liberal-libertarian mainstream. The conservatives who defended the Vietnam War still operate the nonsense-teaching, censorship-shackled schools that dominate the lowest end of rankings. Those conservatives are still losing the culture war and they deserve to lose.

So you're right . . . cue the soundtrack.

[Ed Grinberg]

"...liberal-libertarian mainstream..."

Ha!

[epsilon given]

I think it's funny you consider Cornell to be in the "liberal-libertarian" mainstream. They are clearly "Leftist-Communist", and it's by sheer luck that they "tolerate" a conservative like Professor Jacobson.

Considering that the Leftist-Communist side of the political isle is hard to distinguish from actual Nazis, I consider it to be very sad if, as you say, they are losing the culture war. It is the Leftists who deserve to lose.

[Jimmy the Dane]

I know how the media would treat such a group of protesters, but I would be curious if a group is going to get together and yank down an MLK Blvd sign in a random city. Now that would get people talking.

[NToJ]

Specifically it would get a lot of Republican leaders talking, loudly, about how much they disapprove of the vandalism and stepping over each other to praise MLK. Or did you have something else in mind?

[Jimmy the Dane]

Sadly that is exactly what would happen. And the protesters would be federally prosecuted for a hate crime.

[NToJ]

I'm not sure it would result in hate crime prosecutions. But why would you be sad to hear elected people praise MLK? It's a weird flex.

[Jimmy the Dane]

It will just be more genuflection to the false god of diversity. There is nothing wrong with the majority of what MLK stood for, but like everyone else he did have his faults.

[NToJ]

Even though you say there "is nothing wrong with the majority of what MLK stood for" you'll still be sad when people praise him... because something about diversity? Are you saddened whenever somebody praises a white leader? Or does your sadness only bubble up when someone is praising black leaders, like MLK?

[AtR]

Leave it to lawyers to try to debate the bully who spits on your shoes and bloodies your lip. There is no intellectual discussion here - it is all emotional - and the mob gets to set up the ground rules.

[bonz]

May I refer readers to a piece by Tom Sowell: https://www.washingtonexaminer.com/weekly-standard/the-day-cornell-died
I attended Cornell at the time and, as a guy who was on scholarship, had incurred many loans, and was working a 7 days a week after class job, I deeply resented President Perkins' statement to the effect that there was a lot to be learned from these kids (I believe that this was after they defecated on the desk and carpet in his office). Bullshit. Not on my dime.
One of the fellows on the NYT Magazine's cover photo was a work buddy of mine, and he laughingly told me that his cohorts considered the whole matter to be a joke. When they ran out of beer and wine from the dining hall, tired of looking at "mens'" magazines, and there were no more pinball machines to loot, they walked out.

[Commenter_XY]

Professor Volokh, I'd ask that you keep us updated on this, if there is a debate. I agree with you, Professor Jacobsen has done the right thing here = challenged his accusers to a debate. That is a debate I very much want to hear.

Let's see if Cornell will agree to host the debate. I hope they do.

[Commenter_XY]

My apologies to Professor Bernstein. Doh! 🙂

[bonz]

Sorry to say, but I don't think that they will. In my experience, they are an extremely week-kneed institution.
It may be worth noting that, many, many years ago, the Rockefeller family offered to donate an astonishing amount for the construction of a chemistry building to be called Rockefeller Hall. The family assured university administrators that a similar amount would be forthcoming for the outfitting of the facility--laboratory equipment and so forth. Cornell decided that they would fool the donors--use the donated funds to build an inferior building and equip the laboratories with third rate equipment--the idea being that the Rockefellers were stupid individuals and would give the additional funds so that the administrators could reward themselves for their deception.
Result: The Rockefellers never gave, to my knowledge, another penny to Cornell.
Handsome is as handsome does. The administration, in my day, was completely composed of traditional persons--nowadays, I believe, no-one is hired unless they demonstrate formerly spat-upon sexual, religious, or just plain repugnant personal practices.
And, umm... what's the total cost for ordinary students of the current--no, no, not education, but indoctrination?