The Volokh Conspiracy
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Judge Stras: "What My Grandparents' Experiences in the Holocaust Taught Me About the First Amendment"
Forthcoming in the NYU Journal of Law & Liberty
Judge Stras has posted to SSRN his new article, which is forthcoming in the NYU Journal of Law & Liberty. I encourage everyone to read What My Grandparents' Experiences in the Holocaust Taught Me About the First Amendment. Here is the abstract:
In this lecture, which has been adapted for publication, Judge Stras discusses how his grandparents came to this country to escape religious persecution and censorship after experiencing some of the most inhumane treatment possible during the Holocaust. Judge Stras explores their lives and explains what we can learn from them, including how important the First Amendment is in our lives.
Last week, Judge Stras was protested at Duke Law School. I am confident that if the students had bothered to listen to Stras's remarks, they would have had no need to interrupt, and read a prepared statement in the middle.
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"no need to interrupt, and read a prepared statement in the middle"
Of course they didn't *need* to disrupt a speech. It's good them that they're nice and woke - if they were moderates or conservatives, or even some kind of off-brand leftist, and they'd interrupted (say) Sonia Sotomayor, they'd have been disciplined and professionally damaged.
" Your honor I would like to speak for a group of students who are here to listen and defend their views as you are encouraging us to do.
Judge Stras said, "Please do."
The student continued
I am a queer Jewish law student. Lawyers, politicians, and others who advocate for LGBT anti-discrimination laws are not comparable to Nazis. Suggesting otherwise as you have is abhorrent and although we came to listen to you speak we are not going to sit here and listen to blatant homophobia. Thank you for coming today.
Judge Stras said, "Thank you for speaking out."
The horror! The horror!
Sometimes law students are stupid and deserve to flunk. They should have been more forthcoming: They came to listen to him speak, but to interrupt his speech with their rude, transparently dishonest and rather stupid prepared statement. They could not have gotten that platform on their own, which is why they hijacked his.
Clutch those pearls Micheal! They came, when he equated gays with Nazis this gay person stood up and politely demurred with the speaker's blessing he made a brief statement, was thanked by the speaker, and that was it.
And of course they didn't need to 'hijack' his platform. Do you really think a Federalist Society event at Duke University is some hot ticket item? Come on. It's more likely they were as appalled at his speaking at their university as the people were about Singer recently.
I have still not seen anything even remotely resembling support for this claim.
The Nazi hierarchy was an all gay affair, all the way to the very top. See those uniforms, straight out of Broadway and fabulous. Gays with the reins of government have all been sadistic authoritarians, from the days of Caligula and Claudius.
Authoritarian nutjob.
To be more precise the charge is that he equates LGBT discrimination laws (particularly ones that he thinks touches on speech) with Nazi efforts.
To the extent that they both infringe on freedom of speech, they are equal. You don't want to be compared to Nazis, don't copy the things they did wrong.
Yes. The Nazis were famous for their anti-discrimination laws.
"Nazis enforced traffic laws. If you don't want to be compared to Nazis, don't give tickets to people who run red lights."
You're basically just ignoring what I said. "to the extent that they both infringe on freedom of speech". "the things they did wrong".
Someone who hated traffic laws could be making the exact same statement, with the exact same validity.
IOW your logic is fallacious. I think the exact fallacy is Association Fallacy.
Though also, it's a good rule of thumb to quit invoking Nazis. It's something both sides love to do in equal measure, and it's dumb as hell unless applied to the vanishingly few actual neo-Nazis.
Right, disliking traffic laws, objecting to censorship and ruining the lives of political opponents. It's all the same.
When and exactly how did he equate gays with Nazis?
The fact that those students lied about their intent in coming suggests that they recognized they could not get attention to their views except by interrupting him. The fact that you also lie about what he said suggests that you know that.
How do you know they were lying? They didn't speak until they said what they thought amounted to equating gays and Nazis.
They said they came to listen, but had a prepared statement to read. That means they came to interrupt and pose, not to listen.
It certainly doesn't mean that, if he had not made what they saw as an equation between LGBT anti-discrimination efforts and Nazi efforts they may have never interrupted and read the statement.
So what did those students see as an equation between LGBT anti-discrimination efforts and Nazi efforts? The example he cited of a law that attempted to force wedding videographers to make creative expression being compelled speech, in violation of the First Amendment? A single passing example, which (according to the PDF linked above) he did not liken to what the Nazis did?
How did you ever get to be so dense?
You don't come with a prepared statement unless you've made up your mind before you came. That's pretty basic.
If the judge said gays were all Nazis, he shouldn't have been invited, any more than Singer should be invited.
That's because a university inviting someone suggests that the speech (even if it's controversial) has educational value, but there's no educational value in advocating infanticide or calling gays nazis. Which I assume the judge said because if you can't trust gay law students who can you trust?
"when he equated gays with Nazis"
You'd think if the judge was in the habit of equating gays with Nazis there would be a record of it somewhere. And if there was a record of it somewhere the gay law students would have cited that record in their "more information" printout about Stras's views (scroll down here):
https://reason.com/volokh/2021/09/30/judge-david-stras-was-protested-at-duke-law-school/
Even though they used impeccably impartial news outlets like the Washington Blade and the Gay & LGBT Atlanta News, they couldn't find a quote equating gays and National Socialists.
Apparently, the judge *did* say that a wedding videographer could *decide for himself* whether to video a same-sex union ceremony.
He permitted a marriage referendum to appear on a state ballot even though it wasn't phrased in ways the advocates wanted.
He wrote 13 years ago to indicate that he agreed more with Bowers v. Hardwick than with Lawrence v. Texas.
...and so on and so on.
Nothing about gays being National Socialists.
Did they simply forget to include that quote? Did he say it sometime after the printout came out, so they didn't have time to include it?
Judge Stras is a bigot -- that is a substantial part of the reason he has been placed on the bench by Republicans and the Federalist Society as a relatively young lawyer -- but seems not to be as bigoted as some other conservatives.
Which seems to make Cal Cetin figure 'he's not the worst -- I can defend that.'
Especially at a White, male blog favored by intolerant, obsolete clingers.
Kirkland praising with faint damns!
Translating his remarks, and adjusting for bias, "not as bigoted as some other conservatives" means what normal people would call "a good judge."
But wait, he called gay people Nazis, have you forgotten that?
Artie is a Boomer -- that is why he needs to be replaced by a diverse.
The 'protestor' said he equated anti-LGBT discrimination laws with Nazi efforts in his speech. The printout was about past case opinions of his.
"when he equated gays with Nazis"
I CTRL-Fed my way through the article (I would not pollute my innocent young mind by reading the whole thing). I looked for references to gays (or synonyms or related words for "gay"), and "same-sex." No Nazi comparisons.
So I looked for instances of the word "Nazi," and I found some very incriminating quotes. For instance:
"The Nazi regime, of course, was fundamentally opposed to any ideas except those they endorsed."
and again
"Of course, the Nazi regime also made it a point of defining truth and falsehood,
leaving few willing to speak."
Strictly, he was comparing gay activists to Nazis because these sentences apply to both groups.
So the judge is guilty as charged!
Who hates gays more -- yesteryear's Nazis or today's Republicans?
I think the Republicans win this one.
Congratulations, clingers!
Showcasing an "out" and successful gay man at your party's convention, versus putting gays in concentration camps?
Or maybe you think the Republicans will change their attitude on gays the same way the National Socialists did - after a "Night of the Long Knives" where they kill their most prominent gay supporters?
But you referred to "today's Republicans," not "the imaginary Republicans of my fantasy dystopian future."
Lawyers hate gays the most. They are putting them through the torments of marriage and family law, seeking to plunder their assets.
Unhinged.
Or, to put it in short words for the benefit of people who can't follow sarcasm:
The article doesn't compare gays (or gay activists) to Nazis, unless they recognize themselves in these phrases about being "fundamentally opposed to any ideas except those they endorsed."
But in any case the judge was talking about Nazis not them. If they want to fit the description of Nazis to themselves that's on them.
Now, try this: Go to a speech by former President Obama, interrupt him, and say, "I'll let you finish, but I am deeply morally opposed to your executive clemency for the terrorist Oscar Lopez Rivera."
https://www.politico.com/magazine/story/2017/01/oscar-lopez-commutation-barack-obama-214685/
How many milliseconds before the Secret Service are on you?
"I am confident that if the students had bothered to listen to Stras's remarks, they would have had no need to interrupt, and read a prepared statement in the middle."
Surely you're not that unacquainted with the way these people think, to genuinely believe that.
That was my first thought. There's nothing he could say that would have changed their minds or actions.
I'm pretty close to a first ammendment absolutist and while I agree with the judge in outcome this isn't really a very compelling argument. I mean, at heart it's it's the same kind of argument people use to try and deplatform people like Peter Singer: X made me feel unacceptable way Y (e.g. my right to exist was questioned, I was nothing but a number etc) and so we need this measure which makes me feel safe/protected from it.
I appreciate the argument in the spirit of a kind of reducto of the claims being used to undermine free expression and inquiry. However, the real arguments in favor of defending free speech need to be grounded both in the historical regularity (not one occasion) that we find that free speech limits the power to oppress and tyrannize plus the obvious issues of who gets to make any contrary rule and the risk important truths will be discouraged from being recognized.
I mean it was a well written piece but the problem is just someone else could have written a similar piece about how what they learned was that no hint of racism or prejudice can be tolerated least it grow into something like the Nazis. Ultimately, it's causal claims we need to evaluate not how some people interpret horrific things that happened to them and their families.
"the same kind of argument people use to try and deplatform people like Peter Singer: X made me feel unacceptable way Y"
The argument for deplatforming Peter Singer is that he is in favor of infanticide. It's not about feelings. I am probably not a free speech absolutist. But if a university makes the mistake of inviting Singer to give a speech, then disruptors of the speech should be arrested.
"It’s not about feelings."
Cool story, bro.
Find where someone argues for deplatforming Singer because of feelings, as alleged by Peter Gerdes, and if the argument is in fact as you and Gerdes represent it, I will disavow it.
The Reason software must be buggy because it didn't print your citation.
You're clearly outraged by infanticide (you probably should be!), so yes, you're 'feelings' are involved.
You should understand the difference between "because of feelings" and "feelings are involved". You seem to place much more significance on much smaller differences elsewhere in this thread.
"You’re clearly outraged by infanticide (you probably should be!), so yes, you’re ‘feelings’ are involved."
I will assume that you're outraged by infanticide, rape, murder, etc. And I suppose you believe that these should be banned.
But you surely don't think they should be banned because they outrage you.
Do *I* get to interrupt a judge when (s)he's talking? I thought I'd go to prison for that sort of thing. Even if I really, really, really disagree with what the judge is saying.
Of course you can interrupt a judge speaking at a public lecture (especially if they respond 'please do') without going to prison. Your victimization need is producing some wacky things.
In the Appellate Division you don’t dare interrupt a judge, but down in Kings County Supreme you sometimes have to.
Moron
Seems like what he's saying is reasonable. If your trial judge is going on and on and you need to make your record, you might have to interrupt at some point.
Either David Stras missed the part about not treating people (such as gay people) like dirt, or his grandparents' advice was defective.
Either way, his old-timey thinking is the reason he was groomed for the bench by the clingerverse at a young ago. That is nothing to be proud of.
The Nazis came to power in large part through speech. The best ideas don't always win out at the marketplace of ideas, it's naive to assume otherwise.
The best ideas are not always the ones that get implemented by Nazi-like laws and government force, it's naive to assume otherwise.
I mean, one can just look to see who is pushing for speech- and identity-repressive laws and which side is using street violence to literally beat the people they disagree with. One could think back to when both National and International Socialists did the same kinds of things in the 20th century. One might compare the race-based arguments of today with the race-based arguments of Germany circa 1940. But then one might need to realize that the comparison to Nazis hits closer to home than today's leftists will yet admit.
Calling 'we need to oppress underrepresented, disadvantaged minorities' the same 'race based thinking' as 'we need to assist underrepresented, disadvantaged minorities' is like saying that shooting someone because you want their wallet and shooting someone because they are trying to stab you is the same 'gun violence.' Ditto to equate government force and Nazi like.
You were ranting about "white fragility" in a thread here just the other day. "White privilege" is a common target of vituperation among the propaganda crowd these days. Larry Elder was accused of being "The Black Face of White Supremacy" by a headline.
It is, in fact, very much the same race-based argumentation as back then.
Remember: The first step towards recovery is admitting you have a problem.
It, in fact, is not, because intentions matter and can make two otherwise similar things quite different (see again my examples).
No, the intentions are the same. See again my examples.
They are of course not, 'white privilege' isn't invoked to put white people in concentration camps. Again, by your logic shooting someone to protect yourself and doing the same to rob someone are the same, hey they're both gun violence!
Read a history book or two. The Nazis did not immediately put people into concentration camps. They started with vicious, identity-based propaganda and street violence, then worked themselves up to the concentration camps. They called that their "final solution", not their first attempt.
Cf. (from an old post by Prof. Volokh): "Beating people on the head with metal objects because of their political beliefs is not anti-authoritarian." Ah, but he meant well!
"People I agree with can do no wrong, because intentions matter, and ours are good!"
Sorry, I judge people by what they do, not the intentions they proclaim, and if their means involve compelled speech and labor, I basically don't credit their claim to be well intentioned.
Queen A, you are partially correct. Yes, the Nazis came to power in part through speech. Another part was through suppressing the speech of their opponents. Initially the suppression was imperfect, through bullying, mob action, and the like, but the Weimar government was too weak and ineffectual to prevent that suppression. Once the Nazis got a foothold in the government, they used the government to suppress and terrorize anyone who challenged them. Yes, the "best" ideas don't always win out, but the First Amendment is based on the belief that the government shouldn't interfere in the "marketplace of ideas", and there's nothing in the rise of the Nazis that refutes that belief. Quite the contrary.
"there’s nothing in the rise of the Nazis that refutes that belief"
Of course there is. The Nazis were able to come to a position to do what they did because of their speech. There's no threat of Nazi power in Germany today in large part because their speech and symbols are criminalized.
I'm not sure this means censorship should be used, but there's certainly *something* in that which can be thought to refute that belief you're talking about.
"The Nazis were able to come to a position to do what they did because of their speech" in exactly the same sense that "Luca Brasi held a gun to his head, and my father assured him that either his brains or his signature would be on the contract" is a case of mere speech.
The Nazis had a very long history of violence before they took over. The first time they tried to overthrow the government, Hitler got thrown in jail -- and used his government connections to minimize his sentence. Hitler didn't win his elections, and the Nazis never did better than 37%. They used force, and threats of more force, to coerce people into going along with them.
But all through this they weren't mute. So we have to blame freedom of speech for their rise.
The Nazis used force but they only became a big enough organization to do so effectively because they grew largely via their speech (and appealing to the cesspool of anti-Semitic and conspiracy speech that pre-existed them).
Wrong. The SA started in 1921 when the party had fewer than 2000 members, and immediately engaged in street violence. They fell slightly into disarray when both the overall party and the SA were banned after the Beer Hall Putsch failed, but as Cal Cetín noted father down this thread, the Weimar government did not prosecute most of their crimes and so they were able to re-form and continue.
Queen...You really need to refresh yourself on European history. I am sorry, but you are making some very questionable assertions here. And then building an argument on a faulty edifice. Assertions to me that reflect an incomplete understanding of the rise of the national socialists in Germany. I cannot stand it when people haul out the 'Nazi Card' and proceed to then lamely attempt to smear their opponent playing that card. Weak minds.
I thought the pupil was 'grandstanding'. The pupil made their woke statement, the judge graciously thanked them for their...
lame woke statementcontribution ....and proceeded to deliver the rest of his speech. The pupil is guilty of being asinine, and that is not illegal; it is just bad manners.Judge Stras' SSRN paper made for great reading. I highly recommend it.
My recollection about the nazis usurping power was the Reichstag fire, which the nazis claimed was set by commies. As is so often the case in history the nazis fabricated a hobgoblin and frightened the German populace who, believing it was under attack, clamored to be led to safety. Hitler then had his excuse to suspend the people's rights, including freedom of speech guaranteed by the German constitution.
The fire was a pretext but they already had a substantial foothold of power via their speech.
The power of their rubber hoses and fists, of course, had nothing to do with it, neither did deploying them to silence the speech of others. They were allowed to speak, they ended up on top for a while, obviously the Nazis ended up in power because of freedom of speech.
This is the problem in a nutshell: The left, having observed that it does not automatically win all arguments where people are allowed to speak freely, and having concluded that, if there is censorship, they will be the censors, has decided that freedom of speech has to go.
No system under which they don't win all the arguments could ever be legitimate, after all.
Projection is indeed a hell of a drug!
You're literally arguing that the Nazis came to power through the power of free speech, so presumably you mean we need comprehensive censorship to assure our freedom.
You're in no position to cast aspersions. Go read a history of the runup to WWII.
That's not exactly how it happened. The Nazis were the largest block of the Reichstag with about 37% of the seats. The Communists had 15% making impossible for any other party to form a government without one or the other. Hitler was appointed Chancelor by President Hindenburg and 4 weeks later the Reichstag fire happened. Hindenburg issued the Reichstag Fire Decree which suspended civil liberties, granted the Government extra powers and called for immediate new palimentary election . The Nazis won 44% of the seats in those elections. After the election the Reichstag passed the Enabling Act which allowed the Cabinet to pass laws without reference to the President or the Reichstag. The is when Hitler gained dictatorial powers.
Well, at least people are discussing it -- a neo-dictator with a phantom menace so he can be granted emergency powers that he never gives up.
Emperor Palpatine. Hitler? Ancient Rome? Ancient Greece? Venezuela 15 years ago? Turkey a few years ago?
Nah, let's pretend the solution is for our side to adopt censorship to head off their censorship.
"Domestic violent extremism poses the most lethal and persistent terrorism-related threat to our country today. ... We have witnessed an increase in domestic attacks, particularly by white-supremacist, anti-government and anti-authority extremists. The majority of these attacks have targeted communities of color and other minority groups."
source: https://www.washingtonpost.com/opinions/2021/02/25/majorkas-dhs-domestic-extremism/
"The Nazis came to power in large part through speech. The best ideas don’t always win out at the marketplace of ideas, it’s naive to assume otherwise."
It's not so much that I believe in the marketplace of ideas, as that I don't trust a bunch of socialist Stormtroopers to rampage through the marketplace smashing up the stalls where they're selling ideas the Stormtroopers dislike.
I certainly wouldn't mind warning people away from Peter Singer's stall, and not having universities subsidize what he's selling. Nor, I suppose, would you mind if a polite delegation said to him, "Prof. Singer, we find your position morally indefensible," for which I presume he would thank the delegation.
As for free speech for Nazis during Weimar, that issue need never have arisen because there were so many other things they did and didn't get properly punished for - things like treason, murder, and crimes approaching that.
If they'd somehow limited themselves to speech, then we could have discussed whether they should have been nipped in the bud with well-timed censorship.
Seriously, if you look at the history of the Nazis, the best parallel today would probably be Antifa. Complete with a Reichstag fire back in January.
Yeah, except for the:
- world domination part
- pure race part
- national militarization part
- SS part
- Reichsministerium für Volksaufklärung und Propaganda (Reich Ministry of Public Enlightenment and Propaganda with control of mass media)
But otherwise, sure, lots of parallels.
You know what? The Nazis didn't start there. If we were to compare the Antifa to the Nazis, it would be the early SS before they'd gained political power. Not identical, sure, history rhymes rather than repeating. But the parallels are obvious.
Well sure, but why stop there?
According to your logic, every embryo is a potential NAZI so let's kill all the embryos.
Hitler and Himmler were embryos (I guess).
OK, that's kind of silly.
The reason I'm comparing Antifa to the pre-WWII SS, is that they're essentially a private para-military organization that goes around attacking people in the name of a political philosophy.
They're literally exactly the opposite of a paramilitary organization. You know, since they aren't an organization at all. "Paramilitary" refers to a group organized as a military group, but without being part of the official military. There is no Antifa organization. They don't have training, structure, hierarchy, membership, command and control, etc. You literally couldn't have been more wrong if you were Dr. Ed.
Oh, right, the "Organizations that use cells with deliberately obscured chains of command aren't really organizations." defense. When they show up in the same place, dressed alike, and cooperate on doing something, it's purely coincidence, not planning!
Weird how people show up at a AC/DC concert all kinda dressed the same.
It's a conspiracy!!!!
And you'd deny there's planning and organization behind an AC/DC concert?
The Antifa are organized in cells, which is not remotely the same thing as not being organized.
What would you compare the Proud Boys, etc. to?
You're utterly deranged.
The Proud Boys look to me like an FBI honeypot, maintained to suck in and distract people. Don't you think it's kind of odd when the FBI informant isn't a mere member of the group, but is instead the leader?
Brett, you know how you were saying above that if you don't want to be compared to Nazis don't do things they would do? Well one of the things they were noted for is being incredibly conspiracy-minded and paranoid. So maybe don't do that...
Seriously, you're saying you don't think it's kind of odd when the head of a group is the group's FBI informant? This doesn't suggest FBI false flag to you?
It's not odd at all. It's not a "false flag." It's just like when the FBI has informants or agents in the Italian mafia or a drug gang or some other criminal organization. No one says a crime family is a false flag when a top level boss becomes an informant.
Like those other groups, Right-wing paramilitary groups/gangs tend to have people who are credulous and incredibly stupid. It is easy to convince one of them to turn an informant. It is also easy to infiltrate these groups because, again, they are credulous and incredibly stupid. And like most incredibly stupid and credulous groups they will go along with the almost too convenient outlandish plans suggested by the informant/undercover agent they just met leading to them getting into legal trouble.
This isn't a false flag the FBI concocted. It is the FBI duping incredibly stupid, but still violent and dangerous organizations, just like they do with any other criminal organization.
re: being "conspiracy-minded"
statement: The "investigation" into "collusion" between the 2016 Trump campaign and the Russian government was a conspiracy between (1) the Hillary Clinton campaign, (2) the Obama administration, and (3) the "mainstream" media.
Discuss.
No. See the Report of the Republican-led Senate Intelligence Committee, including members like Marco Rubio (chair) and Tom Cotton on the issue.
As usual, you vastly overestimate Antifa's size and influence.
How about, no one is Nazis except Nazis. Not Antifa, not Trumpists (except for the neo-Nazis), not public accommodation laws
They had enough size and influence to get away with riots and arson day after day, and week after week, in multiple cities. Billions of dollars in property damage, dozens killed, nightly efforts to set occupied buildings on fire.
That wasn't Antifa.
We're watching you on this website building a fictional world so you get to fight liberal Nazis. It's fucking nuts.
It wasn't all Antifa, some of it was BLM and other groups, but a lot of it was Antifa.
Really, why exactly are you so determined to carry water for them?
People who called themselves "Antifa" did it, their participation in riots was organized on social media accounts calling themselves "Antifa", they did the things people that call themselves "Antifa" said their would do, but Sarcastro knows the truth: They were most definitely not Antifa, because Antifa is just an idea/isn't a real organizations/whatever excuse pops into his head today.
I mean, as a specific example, Portland underwent 200+ days of violent rioting and property destruction in one year, including multiple murders and an attempt to burn down an occupied Federal building after sealing the exits. Why do you keep defending the people that are doing these crimes?
He also doesn't understand anything about the Nazi ideology or how they used that to rise the power.
You are EXTREMELY bad at history dude. Like shockingly so.
And still doing better than you.
None of this seems to be a particularly big deal.
A FEDERAL JUDGE JUST SAID GAYS ARE NAZIS!!!!!
And you call that no big deal?
Impeach him and impeach everyone he ever breathed on, just in case he infected them with his homophobia.
As even some other left-leaning folks here have pointed out, he did not say that. A case can indeed be made against what he actually said, but to do so credibly, it should be accurately represented.
...based on some other comments by this user, I may have misread the comment as being serious when it may have been intended to be a parody of others' similar comments along such lines. (Alas, it gets hard to keep track of who tends to be on which side, if you don't read this blog frequently enough...)
When you're a goofball, anything can seem like a big deal.
Of course not.
Why Blackman feels it important to post endlessly on this issue is a mystery.