In a post earlier this week I cited some of the illiberal and, in some cases, unconstitutional incursions by the Trump administration onto the First Amendment in the past few months. Some of the most disturbing violations, though, have targeted our institutions of higher education.
One of the most high-profile attacks has come in the form of the broadside against Harvard University. Thanks to Harvard's willingness to stand up for itself, however, this campaign against universities, despite widespread pusillanimity on the part of campus leaders, is finally starting to show some cracks.
Earlier this month, a Massachusetts federal district court found that the Trump administration violated Harvard's First Amendment rights, and Title VI of the Civil Rights Act, when it revoked billions in funding in a transparent effort to punish the university for its, and its community members', political views under the guise of combatting antisemitism. The government does not receive a dispensation to use unlawful means simply because it says it does so in the name of fighting antisemitism or other discrimination on campus.
Cato Institute scholar has a great overview of the data on how much political violence there is, and who perpetrates it. It is less prevalent than many think, and right-wing political violence is more common than the left-wing kind.
The awful murder of conservative activist Charlie Kirk has stimulated interest in the nature and extent of political violence in the United States. We do not yet know the identity and motive of the killer; but there is at least a substantial likelihood the motive was political in nature. My Cato Institute colleague Alex Nowrasteh has a great overview of the available data on political violence since 1975. He finds that the overall incidence of such violence is much lower than many assume. The 9/11 attacks dominate the stats, accounting for 83% of total deaths. Setting that aside, right-wing violence is significantly more prevalent than the left-wing variety.
It should, perhaps, go without saying. But I condemn the murder of Charlie Kirk without reservation. It is utterly indefensible, and I hope the killer is caught and severely punished. I was no fan of Kirk and his ideology. His organization, TPUSA, even once put me on its "Professor Watchlist" (they apparently removed me from the list a few months later, without explanation). But no one should be attacked or killed for their political beliefs. The murder is all the more tragic in light of the fact that Kirk left behind a wife and two small children. They did nothing to deserve this.
Now for Alex's summary of the data on violence:
A total of 3,599 people have been murdered in politically motivated terrorist attacks in the United States from January 1, 1975, through September 10, 2025. Murders committed in terrorist attacks account for about 0.35 percent of all murders since 1975. Only 81 happened since 2020, accounting for 0.07 percent of all murders during that time, or 7 out of 10,000. Terrorism is the broadest reasonable definition of a politically motivated murder because it is the threatened or actual use of illegal force and violence by a nonstate actor to attain a political, economic, religious, or social goal through coercion, fear, or intimidation….
Eighty-three percent of those murdered since 1975 were committed by the 9/11 terrorists…. The Oklahoma City Bombing accounts for about another 5 percent. Those murdered since 2020 account for just 2 percent. Terrorists inspired by Islamist ideology are responsible for 87 percent of those murdered in attacks on US soil since 1975…. Right-wingers are the second most common motivating ideology, accounting for 391 murders and 11 percent of the total. The definition here of right-wing terrorists includes those motivated by white supremacy, anti-abortion beliefs, involuntary celibacy (incels), and other right-wing ideologies.
Left-wing terrorists murdered 65 people, or about 2 percent of the total. Left-wing terrorists include those motivated by black nationalism, anti-police sentiment, communism, socialism, animal rights, environmentalism, anti-white ideologies, and other left-wing ideologies. Those murders that are politically motivated by unknown or other ideologies are a vanishingly small percentage, which is unsurprising because terrorists typically want attention for their causes.
"Right" and "left" are somewhat arbitrary and incoherent categories. Thus, people can argue about some of Alex's coding choices here. For example, I am not sure black nationalists really qualify as "left" and incels as "right." Nonetheless, the coding here mostly tracks the way these terms are generally used in current US political discourse. Thus, Alex is right to conclude that right-wing violence is more prevalent than the left-wing kind, even though one can quarrel with the classification of a few specific perpetrators at the margin.
Given the outsize weight of the 9/11 attacks in the data, partisans will be tempted to categorize radical Islamists with their political opponents. Thus, left-wingers might argue that Islamists are on the right, due to their extreme social conservatism (they hate LGBT people, want women to be subordinated to men, and so on). On the other hand, one could also argue that they are actually left-wing, due to their hatred of Israel and opposition to American influence in the world. These latter attitudes are more prevalent on the far left, though there are elements of them on the nationalist/MAGA right, as well. In my view, al Qaeda and its ilk don't really fit on the US right-left political spectrum, and thus Alex is right to group radical Islamists in a separate category from either.
Regardless of the source, it is reassuring that political violence is relatively rare. The average American is vastly more likely to die in a car accident than be a victim of politically motivated murder. And, as Alex notes, such attacks account for only a tiny percentage of all murders. Prominent political figures are probably more at risk. Nonetheless, the overall level of danger is low, even for most of them.
For understandable reasons, Alex's data does not include death threats, which are surely far more common than actual murders or attempts. While the vast majority of such threats aren't acted on, they still cause pain and fear to those they target. I have reason to know, having gotten several myself, over the years, including one that turned out to be from "mail bomber" Cesar Sayoc. Better-known activists and political commentators likely get a lot more than I do. The increasing prevalence of social media and other forms of electronic communication have, I suspect, made such threats more common.
I am not aware of any good data on the relative prevalence of death threats by ideology (as opposed to actual attacks). But I suspect that right-wing ones are more common here, as well.
One person's experience isn't necessarily indicative. But over twenty years of libertarian commentary on law and public policy issues, I have said many things that annoy people on both right and left. With one arguable exception (a Russian nationalist angered by my condemnations of Vladimir Putin's regime), every single one of the threats I have gotten was from right-wingers, mostly related to the issue of immigration. By contrast, I have never gotten threats for things like criticizing affirmative action, condemning socialism, opposing "defunding the police," or attacking student loan forgiveness. Some of these have generated other types of online nastiness. But never any threats of violence.
As already noted, more systematic data is needed here. Perhaps my experience will turn out to be atypical.
I don't see any ready solution to the problem of politically motivated death threats. Given how easy they are to make, it is probably unrealistic to expect the authorities to track down more than a small fraction of them. Social media firms may be doing a better job of combating them then a few years ago. But that, too, is difficult. All I can say is that we should condemn them, and avoid being intimidated by them.
As for actual political violence, it is good that it remains relatively rare. But we should be wary of the danger that it might become worse.
UPDATE: Alex Nowrasteh has a follow-up post with more information on his methodology and data sources.
"The Supreme Court has recently confirmed that the Free Exercise Clause does not prohibit a state from providing 'a strictly secular education in its public schools'"—and, the court held, that extends to California charter schools and their parental "home-based direct instruction approved by the school and coordinated, evaluated, and supervised by state-certified teachers."
From today's decision in Woolard v. Thurmond, written by Judge Andrew Hurwitz and joined by Judges Eric Miller, and Jennifer Sung:
California provides free public education through its common schools. It long did so through brick-and-mortar schools owned and operated by public school districts. In 1992, California authorized the establishment of charter schools, "public schools funded with public money but run by private individuals or entities rather than traditional public school districts."
Like traditional public schools, charter schools can provide non-classroom-based instruction, including "independent study" programs, in which parents provide home-based direct instruction approved by the school and coordinated, evaluated, and supervised by state-certified teachers. To participate in these programs, parents must enter into a contract with the school specifying the objectives, methods of study, and methods used for evaluating student work. The school is then required to provide appropriate materials and services necessary to achieve the agreement's objectives.
The plaintiffs in this 42 U.S.C. § 1983 action are parents and guardians of students enrolled in independent study programs at two California charter schools who requested that the schools purchase and permit the use of sectarian curricular materials for instruction in the programs. The schools rejected those requests because California law provides that "sectarian or denominational doctrine" shall not "be taught, or instruction thereon be permitted, directly or indirectly, in any of the common schools of this State," and that "a charter school shall be nonsectarian in its programs."
The court rejected the plaintiffs' Free Exercise Clause challenge:
It's worrying enough to consider the reasons why students and academics on U.S. campuses may fear the consequences of offending the Chinese Communist Party, or how administrators may worry that they need to augment their operations to protect funding opportunities originating from China. But it becomes a concern of significantly greater magnitude when you look at this issue in its full scope. This is a challenge across higher education as a whole, not just in isolated countries.
What happens to the way we research, teach, discuss, and debate authoritarian nations when those same nations are seeking to remake higher education in their image on a global scale? The long term risks to the way all of us, now and in the future, understand the world we live in are severe. But so are the risks to the individuals who today bear the brunt of those repercussions, like Canada's student activists.
"[T]he only evidence of disruption pointed to by Defendants is the fact that a teacher felt uncomfortable at a session designed with the expectation that participants would feel uncomfortable."
An excerpt from the long opinion in Grande v. Hartford Bd. of Ed., decided Tuesday by Judge Sarah Russell (D. Conn.):
This case centers around the Hartford Board of Education's investigation and reprimand of Grande for comments he made during a Zoom training held on October 28, 2020…. Grande began working as a physical education teacher for the District in 1989 and continued in that role until he retired on October 1, 2024.
As a result of the COVID-19 pandemic, the Hartford Public Schools stopped in-person instruction for a period of time beginning on March 17, 2020. In fall 2020, Grande was teaching remote physical education to his students…. Avicolli [Director of Arts and Wellness] sent a survey to teachers within her department regarding the level of student engagement during remote classes. Grande answered the survey reporting that not many students were showing up to his remote classes. This lower attendance reflected a national problem of student engagement during the pandemic. After Avicolli conducted the survey, she scheduled a professional development training for teachers in her department. …
The PowerPoint [used at the training] identifies as the "learning target" of the session the following goal: "I can explore my own identity and privilege to better understand how I relate to my students in order to increase engagement and collaboration." The agenda for the meeting shows that the session would include an "Identity and Privilege Activity" and "Break-Out Group Reflection Time" as well as "Closure in Whole Group." The PowerPoint explains that participants will "explore our privilege as related to various social identities" and says "[w]e believe it is critical for everyone to reflect on privilege in this way in order to use our individual and collective privilege(s) for equity and social justice."
The PowerPoint includes an "Identity Wheel" with pie slices that are labelled with categories including race, gender/sex, sexuality, nationality/citizenship, other, religion, class, and ability. Each pie slice is divided into eight sections. The instructions explain that slides for each social identity will be displayed with eight statements that describe examples of "privilege related to that category's system of oppression and privilege." Participants are instructed to shade a section of the wheel if their answer is "basically yes" to the statement….
From Black v. CNN, Inc., decided yesterday by Florida Court of Appeal (4th Dist.) Chief Judge Jeffrey Kuntz, joined by Judges Spencer Levine and Alan Forst:
After CNN.com published a story about "surgeries gone wrong" at St. Mary's Hospital, CNN's Anderson Cooper 360°, a television program anchored by Anderson Cooper reported on "secret deaths" at the hospital. Cooper told his audience that these secret deaths stemmed from the surgeon leading the program, Dr. Michael D. Black, failing to conduct the surgeries safely. Cooper even asked why Dr. Black was allowed to continue operating…. Dr. Black filed a defamation lawsuit against the defendants ….
We express no opinion on the merits of Dr. Black's claim. But Dr. Black presented evidence alleging CNN and its employees published a story implying Dr. Black's allegedly deficient performance caused babies to die. The evidence is such that a reasonable jury could return a verdict for Dr. Black….
The factual summary is long, and available in the opinion; but the heart of the dispute had to do with whether CNN falsely portrayed Black as a dangerous doctor based on the raw mortality rate of his operations, which wasn't controlled for their difficulty; here is one of the allegedly libelous statements:
According to the documents CNN obtained from the state, from 2011 to 2013, [St. Mary's] performed 48 open heart surgeries on children and babies. Independently, CNN determined that six infants died, and confirmed the deaths with parents of all six children. From those numbers, CNN was able to calculate the death rate for open heart surgeries as 12.5%, more than three times the national average of 3.3% cited by [STS].
It has been understandably obscured by other news. But, on September 2, in Ozurumba v. Bondi, the US Court of Appeals for the Fourth Circuit ruled that performing forced labor for a terrorist organization does not qualify as "material support"for terrorism barring a migrant from applying for asylum in the United States.
The 2-1 decision broke with a 2018 ruling by the Justice Department Board of Immigration Appeals, in Matter of A-C-M, which held that even "de minimis" forced labor for a terrorist organization qualifies as material support (regular federal courts are not bound by BIA precedents). A-C-Mmay be the worst modern judicial decision I have seen issued in over twenty years as a legal scholar. So I am glad the Fourth Circuit ruled a different way. But I fear the majority opinion by Judge Andrew Wynn didn't pick up on the best rationale for that result.
As the Fourth Circuit recounts in detail, Izuchukwu Ozurumba, a Nigerian migrant seeking asylum, had - some years earlier - taken a job as a seemingly innocuous cook. When he discovered that the job actually involved preparing meals for leaders of a Nigerian terrorist insurgent group - the Unknown Gunmen - he tried to quit. But members of the terrorist group forced him to stay, on pain of death. He worked without pay for several more months until he was able to escape.
Judge Wynn's majority opinion argues at length that Ozurumba's cooking wasn't significant enough or closely enough connected to acts of terrorism to qualify as "material support." In dissent, Judge Julius Richardson argues that cooking is indeed material support, because the terrorists need to be fed in order to carry out their heinous acts; he quotes the famous adage that "an army marches on its stomach." I think Judge Wynn, overall, has the better of this debate, and he is certainly right to reject the de minimis standard adopted by the BIA in A-C-W. But both sides in this exchange have some reasonable points.
What both mostly neglect is that there is a much easier and more compelling basis for resolving this case: forced labor cannot qualify as "material support," no matter how valuable it was to the terrorists, because "material support" must be a voluntary act. As I explained in a 2021 article about the A-C-W case:
In the asylum context, providing "material support" to terrorists should be an at least somewhat voluntary activity. Slave labor surely does not qualify.
A slave laborer forced to work for terrorists is not a threat to American security, nor can she said to be a true supporter of the terrorist organization. Read in context, the word "support" should be interpreted as something akin to "willingly aid," not accidentally and surely not by performing forced labor.
The majority cited an earlier 2016 BIA decision holding that the "material support" statute does not include an exception for "duress." That ruling, too, is egregiously wrong (though less so, since it involved a far less extreme degree of coercion), and should have been overruled (as the Board had the power to do). Moreover, slavery backed by the threat of death, goes well beyond mere ordinary duress. If nothing else, equating slave labor with material support for terrorism is precluded by the longstanding canon against absurdity in legal interpretation, a rule that even most strictly textualist judges, such as the late Justice Antonin Scalia, adhere to.
The point of the "material support" rule is to keep out potentially dangerous terrorists. Slave laborers are not such terrorists; they are their victims. If anything, they are less likely to sympathize with the terrorists than people who have never had any contact with terrorist groups at all.
As noted in my 2021 article, this is an important issue affecting a substantial number of people. Tragically, a good many terrorist groups use forced labor. ISIS was a particularly notorious example. Categorically excluding all of these victims of terrorism from eligibility for asylum is perverse.
The Fourth Circuit majority avoided the duress issue, because it is not clear whether an earlier 2012 Fourth Circuit decision holding there is no "duress" exception to the relevant statute is still binding after the end of Chevron deference to executive branch agency interpretations of law (the previous ruling was based on such deference). Judge Richardson in his dissent indicates he agrees with the view that there is no duress exception at all.
The 2012 ruling involved a less severe form of duress than actual slave labor; the migrant in that case was allowed to leave, if he wanted to, though he would have had to give up his home to the terrorists if he refused to help them. Thus, the current panel should have distinguished it. In any event, the idea that there is no duress exception at all to this law is so egregiously ridiculous that the agency view did not deserve any deference even under Chevron (which required such deference only if the agency's view was "reasonable").
Some legal issues are genuinely difficult. This one just simply isn't. The idea that performing slave labor for a terrorist organization on pain of death qualifies as "material support" for terrorism is simultaneously cruel and absurd. It's distressing that some jurists keep getting it wrong.
UPDATE: It's worth nothing that, if people performing forced labor for terrorist organizations qualify as providing "support" for terrorism, then by the same logic, many Holocaust survivors must be considered as providing "support" for the Nazis. After all, many of them were forced to work as slave laborers!
At times like this it is worth considering and reflecting upon the history and principles of religious toleration. We often lost sight of just how demanding and challenging calls for religious toleration were in prior times.
Religious toleration was not about being nice to people with different customs or holidays, let alone approving or affirming them, but something far more profound. At heart, religious toleration was about sharing civic space with those who disagreed profoundly about the most fundamental questions of human nature and morality, who rejected divinity and truth, who spread heresy and threatened the eternal damnation of immortal souls. For a religious people, the stakes could not have been higher, and yet toleration was called for.
It may be hard to fully comprehend what principles of religious toleration demanded, but it matters. If a religious adherent could be asked to tolerate those of another faith--those who are, by definition, profoundly wrong--we should be able to tolerate those who disagree about mere matters of politics or policy. Indeed, even if--or especially if--politics has supplanted religion for many people, toleration is essential for a free, diverse, and democratic republic to survive.
The foundation of a free society is the ability to participate in politics without fear of violence. To lose that is to risk losing everything. Charlie Kirk — and his family — just lost everything. As a country, we came a step closer to losing everything, too. . . .
You can dislike much of what Kirk believed and the following statement is still true: Kirk was practicing politics in exactly the right way. He was showing up to campuses and talking with anyone who would talk to him. He was one of the era's most effective practitioners of persuasion. When the left thought its hold on the hearts and minds of college students was nearly absolute, Kirk showed up again and again to break it. Slowly, then all at once, he did. College-age voters shifted sharply right in the 2024 election.
That was not all Kirk's doing, but he was central in laying the groundwork for it. I did not know Kirk and I am not the right person to eulogize him. But I envied what he built. A taste for disagreement is a virtue in a democracy. Liberalism could use more of his moxie and fearlessness. In the inaugural episode of his podcast, Gov. Gavin Newsom of California hosted Kirk, admitting that his son was a huge fan. What a testament to Kirk's project. . . .
Kirk and I were on different sides of most political arguments. We were on the same side on the continued possibility of American politics. It is supposed to be an argument, not a war; it is supposed to be won with words, not ended through bullets. I wanted Kirk to be safe for his sake, but I also wanted him to be safe for mine, and for the sake of our larger shared project. The same is true for Shapiro, for Hoffman, for Hortman, for Thompson, for Trump, for Pelosi, for Whitmer. We are all safe, or none of us are.
UPDATE: Most of the critical responses to Klein's piece I've seen focus on the substance of Kirk's politics. In this regard I think they miss the point. That said, there is an argument that insofar as Kirk embraced and advanced an illiberal agenda that threatens democracy and (ultimately) the civic discourse in which Kirk was participating. This piece by Nick Catoggio makes that point. I am unconvinced--for the same reason I reject the argument that one need not tolerate the intolerant--but it is a serious view.
From yesterday's decision by Judge Susan Illston in U.S. v. Harara:
For purposes of this motion to dismiss, the Court treats as true the factual allegations as stated in plaintiff's complaint and draws all reasonable inferences in plaintiff's favor….
The Jerusalem Coffee House [which Harara owns] is a business establishment open to the general public. The coffee house is located on the premises of the East Bay Community Space, "which regularly hosts events that are open to the general public for exhibition or entertainment …."
According to the complaint, on June 10, 2024, Michael Radice—who is Jewish—went to the East Bay Community Space "for the purpose of viewing the establishment for a fundraising event for his organization." Radice was wearing a dark blue baseball cap with a light blue Star of David and white Hebrew lettering. As he approached the community space from the side where the coffee house is located, a man sitting at a table in front of the coffee house asked, "Are you a Jew?" Radice answered in the affirmative. The man then asked, "Are you a Zionist?" Radice declined to respond.
The complaint alleges that "[t]he man then began shouting numerous accusations at Mr. Radice, including that he was complicit in Israel's military actions in the Gaza Strip following the October 7, 2023 Hamas attacks and guilty of 'killing children.'" As Radice began to walk away, the man stood up and asked, "Where are you going?" The complaint alleges, "Mr. Radice saw another man, whom he later learned was Harara, walk out of the coffee house and speak to the man, and the two went inside."
On June 30, 2020, Beijing enforced the national security law in Hong Kong, targeting alleged acts of separatism, subversion, terrorism and collusion with foreign countries. It was a vaguely-worded legislative weapon handed to authorities to crush the city's vibrant democracy and protest movements. But it did even more than that. The law was also explicitly written to apply to acts committed "outside the region by a person who is not a permanent resident of the region."
That means anyone, anywhere in the world, at any time, can violate this law.
For the hundreds of thousands of students moving to and from mainland China or Hong Kong and foreign campuses, to the academics who study the region, and for those with family in the city, it created a cloud of fear. They already had to contend with the possibility of violating the law with even anodyne political statements and facing arrest when stepping foot in the region. But with everything in higher education taking place online during the pandemic's early days, from classroom discussions to political debates among friends, the risk that offending statements could be surveilled and catalogued rose skyrocketed.
And as I document in my book, even American campuses were not immune to the law's shadow.
In today's excerpt from the book, though, I'd like to detail the effects of the laws within Hong Kong's education system itself, as a primer on how swiftly such laws can wholesale silence dissent.
Every generation has a defining moment. For my generation, it was 9/11/2001.
Here are my memories of 9/11/2001. It was a Tuesday.
I was a Senior at Staten Island Technical High School, which is about 20 miles from ground zero. We were about 1 week into the school year. I was sitting in Ms. Endriss's 2nd Period A.P. Political Science class. We were going over some NYC Public School discipline policy, and discussing what kinds of weapons were forbidden in schools (brass knuckles were a no-no). A student walked into the classroom late. He had heard a rumor that a Cessna airplane had hit the World Trade Center. A girl in my class exclaimed that her father worked in the World Trade Center. I could see the look of fear in her eyes, even though none of us had any clue what was going on. She wanted to call her dad. I was the only student in the class with a cell phone, which I promptly gave her. The call did not go through–he worked on one of the upper floors of the tower, and passed away.
We finished second period, apprehensively. I logged onto a computer, and attempted to check the news. I recall one friend told me to check MTV.com for news. At that point, the reports were unclear, and no one knew what was going on. We proceeded to 3rd period A.P. Calculus with Mr. Curry. At that point, someone told us that it was not a Cessna, but in fact a passenger jet. We were all getting nervous, and didn't quite know what was going on. Later in class, a student came into the class and said a second plane had crashed into the other tower. We also heard that there was an explosion at the Pentagon. At that point, we knew it was not an accident.
I remember leaving the class (something I never did) and walked up to the library where I knew there was a T.V. Just as I arrived in the library, I saw the first tower collapse. I watched it live. I was stunned and could not believe what was happening before my eyes. I grabbed my cellphone to call home, and almost immediately after the tower collapsed, I lost all service. I was not able to call my mom in Staten Island, though I could call my dad who was working in Long Island. Long distance calls seemed to work, but local calls were not working. I remember my dad told me that this was a life-changing event, and he had no idea what would happen. I heard some rumors on TV that there were 15 planes that were hijacked, and unaccounted for in the skies.
By lunch time, the school guidance counselor set up a conference room where students could go to talk. I remember seeing student after student who had a family member or friend who worked in the World Trade Center or in Manhattan. A large number of firefighters and police officers reside in Staten Island. Tragically, many of the emergency responders who perished were from Staten Island. What could we even tell those students?
After that, the day become a blur. I remember hearing that the second tower had collapsed, though I did not see it. I remember watching the entire United States Congress sing God Bless America on the steps of the Capitol. I had never been so afraid in my life. Later that night, I took a bus home. The New York City public buses were still running, and I remember the driver was not collecting fares. On the bus, people were talking about the imminent war (against whom, no one knew) and the imminent draft. Some were saying that students were exempt from the draft.
The next morning, September 12, 2001, I woke up and smelled this horrible smell. The air had this pungent odor, that reminded me of burned flesh at a BBQ. I went to school that morning, and attendance was low. In all of my classes, we were talking about war. I asked whether the US would need to use nuclear weapons. My teacher explained that carpet bombing–a phrase I had never heard of–could wreak plenty of damage in Afghanistan. Later that week students began making sandwiches for the relief workers, and collecting goods to donate to the relief effort.
From Staten Island, I could see the smoldering Ground Zero. It was surreal. The skyline looked so very empty. To this day, whenever I look at the Skyline, a sight I had seen thousands of times, I have the most bizarre feeling. Additionally, whenever we saw an airplane fly overhead, we all freaked out. This lasted for months.
For days, weeks, and months after 9/11, people in Staten Island were waiting for their loved ones to come home. Many patients were alive, but were so badly burned that they could not be identified. People prayed that these unnamed patients would soon come home. One woman whose husband was a firefighter waited outside her home every single night for months. She eventually put a candle in her window every night. Later, she put a memorial lamp in her window. He never came home. Others were simply waiting for remains of their loved ones to be returned. Many were never identified.
I ordered a gas mask from eBay, which I kept in my car, fearing a biological weapon attack on New York City. I remember I tried it on once and I almost suffocated. I wanted to order some Cipro for an anthrax attack, but I could not locate any.
It is hard to encapsulate what a New Yorker went through on 9/11. Thinking back on that day, when I was just 17 years old, I realized that I had to grow up awfully quick. It was a new world we were living in.
In 2018, I was protested at the CUNY Law School. Thankfully, the students did not engage in any acts of physical violence, but I was well aware that things could have turned south quickly. Immediately after the event, I went home to see my parents in Staten Island. My mom and dad were mortified at what happened to me. They were concerned for my physical safety. They implored me to never speak at another law school again.
You can gather I did not heed their advice. I decided, for better or worse, that the messages I bring to other schools are very important, and there would be a significant loss were I to stand down. Still, every time I step foot on a campus, I realize there is a risk. I fully recognize that most law schools lack sufficient resources to protect me as a speaker. Some schools require visitors to check in at a reception desk. Others do not. Virtually no schools have any sort of security checks at the door. I am not (yet) at the level where I need to bring my own security detail. I am truly at the mercy of whatever students decide to do.
This realization flashed before my eyes as I learned the tragic news of Charlie Kirk's assassination. Kirk became one of the most influential conservatives in America. To his credit, he traveled across the country, and was willing to engage and debate on some of the most contentious issues in society. And by all accounts, it seems that Kirk's controversial views led to his assassination.
One response to his craven killing would be to cower, and stop speaking on controversial issues. That surely is the path of least resistance, and I would not begrudge someone who takes that path. Another response is to resolve to speak more boldly about that which matters the most.
It is easy enough for people who are not on the speaking circuit to opine on how to proceed. (Much like people who have never written anything longer than anonymous comments feel qualified to attack regular bloggers.) But these people aren't the ones who have to wake up at the crack of dawn, board a crowded flight, rent a car in some foreign city, show up at an event where you are vulnerable and exposed, and then try to get some sleep at a generic hotel. The lifestyle of a public speaker may seem glamorous, but it is not. And now, with Kirk's assassination, the cost of public speaking becomes even greater.
I think FedSoc speakers, and other fellow travelers, will need to give more thought to security and safety.
I already have a host of events scheduled this semester, which I don't plan to cancel. Long-time readers may have observed that I no longer post my travel schedule in advance. I stopped doing so after the CUNY protest, so I would not make it easier for protesters to plan.
I continue to mull over Noem v. Perdomo. This case is different from recent emergency docket orders, which typically involve questions about administrative law and presidential power. Noem considers a more traditional constitutional dispute about the Fourth Amendment. In recent years, the Court has granted very few Fourth Amendment petitions. There is one case this year about the emergency-aid exception. So perhaps it is unusual for the Supreme Court to jump back into the CrimPro fray on the emergency docket.
But taking a step back, Noem may just represent where the current Court is on matters of criminal procedure. We have seen the Justices pivot to the right on a number of issues. But so far, the Fourth Amendment has not been affected. The last big Fourth Amendment case, Carpenter, was decided in 2018, while Justice Kennedy was still on the Court!
Where is the Roberts Court now on these issues? I think the most useful analogue to understand Noem may actually be City of Grants Pass v. Johnson. That case involved the Eighth Amendment, but the issues are related: can the state prohibit the "status" of being homeless? To be sure, the majority, per Justice Gorsuch, narrowly ruled that it was the conduct of camping that was bring criminalized. But I think Justice Sotomayor's dissent made the compelling point that people without homes have to sleep somewhere, and the state's law makes it a crime to simply be. As I put it, No homeless in the park.
The analogy between Grants Pass and Noem is apt. Under federal law, the mere status of being in the country illegally is an offense--not criminal, but the distinction doesn't matter here. There is no respite from this offense, which exists wherever an alien might be found--including while working. Justice Kavanaugh writes:
The interests of individuals who are illegally in the country in avoiding being stopped by law enforcement for questioning is ultimately an interest in evading the law. That is not an especially weighty legal interest.
I think what Justice Kavanaugh is saying here, is that the Fourth Amendment "reasonableness" inquiry must be different when the federal government is enforcing immigration laws. The fact that simply being illegal is itself an evasion of the law grants the government greater leeway in detaining suspected illegal aliens to check their immigration status. Two of the factors being considered are the person's apparent race or ethnicity, and whether they spoke Spanish with an accent. The government can consider these factors in the immigration context, even if they could not be considered in more routine law enforcement stops.
Mike Dorf wrote a post titled, "Working While Brown is the New Driving While Black." The title is provocative, to be sure, but I think it masks how the analysis here differs. A highway patrol officer should not consider a person's race, ethnicity, or language, when looking for traffic offenses, because none of those characteristics are themselves indicia of breaking traffic laws law. By contrast, factors like race, ethnicity, and language, combined with other factors, could be indicia of the person being in the United States in violation of immigration laws.
I do not think the Court is prepared to challenge longstanding precedents about racial profiling in traditional law enforcement contexts. To return to Dorf's post, a black person has every right to drive without being unlawfully detained based on their race. By contrast, according to Justice Kavanaugh, an illegal alien--or at least a person very likely to be an illegal alien--has no such right to not be detained. As Justice Kavanaugh explains, their interest in not being stopped is not "weighty."
Like in Grants Pass, Justice Sotomayor is in dissent pointing out the difficulties for people who lack the right to simply exist in their community--whether the homeless or illegal aliens. I think she effectively makes the policy argument, but the majority sees it differently.
Big picture, Justice Kavanaugh is signaling that the Court will allow the executive branch leeway to enforce federal immigration laws, even if past administrations failed to take these steps.
I highlighted this passage in my post yesterday:
To be sure, I recognize and fully appreciate that many (not all, but many) illegal immigrants come to the UnitedStates to escape poverty and the lack of freedom and opportunities in their home countries, and to make better lives for themselves and their families. And I understand that they may feel somewhat misled by the varying U. S.approaches to immigration enforcement over the last few decades. But the fact remains that, under the laws passedby Congress and the President, they are acting illegally by remaining in the United States—at least unless Congress and the President choose some other legislative approach tolegalize some or all of those individuals now illegally present in the country. And by illegally immigrating into and remaining in the country, they are not only violating the immigration laws, but also jumping in front of those noncitizens who follow the rules and wait in line to immigrate into the United States through the legal immigration process.
I think this passage, in a nutshell, summarizes how the Court will approach immigration cases. Justice Kavanaugh is at his best when he is explaining novel concepts that the Court hasn't yet gotten around to. Stay tuned till a case like this reaches the merits docket.
An interesting new report was published about non-Ashkenazi Jewish communities in the US, focusing on Persian Jews in the Los Angeles area, Syrian Jews in Brooklyn, Bukharan Jews in Queens, and Sephardic Jews in South Florida. Naturally, I was especially interested in the section about how these Jews interact with American racial classifications:
Sephardic Jews themselves have varied perspectives on US racial and ethnic categories. When asked, some Sephardic Jews identify as white, others as Asian, Black, Hispanic, and Middle Eastern, but many reject US racial and ethnic categories altogether because these classifications do not reflect their experiences in their countries of origin nor represent their self-understanding.
The overwhelming majority of our interviewees—Syrian, Bukharian, Hispanic, Persian, and other Jews from the MENA (Middle East and North Africa) region—told us they do not identify with the category of Jews of color.
In my own experience talking to Jews from Israel from non-Ashkenazi backgrounds who immigrate to the US, they are bewildered when they arrive by the classification boxes they are expected to check. Their personal identities are some combination of Israeli, Jewish, country of recent origin (Iraqi, Yemenite, Bulgaria, etc), and Mizrahi. An sometimes they have very strong sub-identities with those categories (e.g., eighth generation Israeli, national-religious Jewish, Kurdish Iraqi). But when they come to the US, they are expected to choose an identity ("Hispanic," "White," "Asian,") that does not even overlap with their personal identities.
It will be interesting to see how the Biden administration's promulgation of a new MENA (Middle East and North African) classification affects American Jewish identity. My short editorial comment is that a classification that includes Israeli Jews, Egyptian Copts, Lebanese Shi'ites, Turkish Sunnis, Iraqi Chaldeans, and much more isn't a very coherent category. To a significant extent it's meant to be a proxy for Arab Americans or Muslim Americans, but a very large percentage of the cohort is either not Arab, not Muslim, or neither.
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