10/13/1890: Justice Samuel Miller dies.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Remembering September 12, 2001
Every year, I post a remembrance of September 11, 2001. It is also worth remembering what happened on September 12, 2001. Around the globe, there was unified support for the United States, and the victims of atrocious acts of horror. Everyone was willing to stand in solidarity with Americans. Virtue signaling is always easy enough.
But that uniform support faded rather quickly. As it became clear that the United States was on a war footing, the opposition began. On September 14, the ANSWER Coalition formed. (The acronym stood for "Act Now to Stop War and End Racism.") By September 29, ANSWER and others organized protests against military intervention in Afghanistan. And on October 7, 2001, the United States invaded Afghanistan. (That day I was doing a campus visit of NYU, a school I was admitted to, but decided not to attend, in part, because I didn't want to be so close to lower-Manhattan--in hindsight, the absolute right decision that had nothing to do with terrorism.)
Over the next few years, the memories of 9/11 vanished. All of the tattered American flags were removed and the "thank you for your services" ended. There was a constant, never-ending series of public protests against the Afghanistan war, and later against the Iraq war. Students held "die-ins" on campus where they would pretend to be dead in coffins. President Bush was called Hitler over and over again. Musicians would weave in anti-war themes into their songs. (For years, I couldn't listen to Green Day.) And so on. Thank the lord there was no social media in the day.
There may be some sense of unity now, only a few days after the October atrocities in Israel. But it will fade very, very quickly. And we all know how things will go--especially since this war will involve the Jewish state. There is nothing new under the sun.
Section 3 of the Fourteenth Amendment
Why an insurrectionist can run for and serve as President, but not as an Elector of the President
My initial view that Trump was covered by Section 3 of the Fourteenth Amendment was formed because I believed then, and do still now believe, that the events of January 6, 2021 were an "insurrection." Daniel Webster's 1st edition of his Dictionary of American English, which had been published in 1828, and would have been authoritative to the Framers' of the Fourteenth Amendment, defines the word "insurrection" as follows:
"INSURREC'TION, noun [Latin insurgo; in and surgo, to rise.]
- A rising against civil or political authority; the open and active opposition of a number of persons to the execution of a law in a city or state. It is equivalent to sedition, except that sedition expresses a less extensive rising of citizens. It differs from rebellion, for the latter expresses a revolt, or an attempt to overthrow the government, to establish a different one or to place the country under another jurisdiction. It differs from mutiny, as it respects the civil or political government; whereas a mutiny is an open opposition to law in the army or navy. insurrection is however used with such latitude as to comprehend either sedition or rebellion.
It is found that this city of old time hath made insurrection against kings, and that rebellion and sedition have been made therein. Ezra 4:19.
- A rising in mass to oppose an enemy. [Little Used.]"
Thursday Open Thread
Stanford Instructor "Suspended for … [Alleged] 'Identity-Based Targeting' of Students in Connection with the Israel-Gaza War"
From the Forward (Beth Harpaz):
An instructor at Stanford University has been suspended for what the president and provost called "identity-based targeting" of students in connection with the Israel-Gaza war.
Rabbi Dov Greenberg, director of the Chabad Stanford Jewish Center, said he was told by three students who were in the room that the instructor asked Jewish and Israeli students to identify themselves during a session for a required undergraduate course called "Civil, Liberal and Global Education."
The teacher told the Jewish students to take their belongings, stand in a corner, and said, "This is what Israel does to the Palestinians," Greenberg said, citing the student accounts. The instructor then asked, "How many people died in the Holocaust?" When a student answered, "Six million," the lecturer said, "Colonizers killed more than 6 million. Israel is a colonizer."
This appears to be the incident referred to by the Stanford President and Provost here:
Journal of Free Speech Law: "Taxing Nudity: Discriminatory Taxes, Secondary Effects, and Tiers of Scrutiny," by Prof. Alexander Volokh (Emory)
(That's Sasha Volokh, who occasionally blogs here.)
Just published in the Journal of Free Speech Law, and available here; here's the Abstract:
In recent years, states have passed "pole taxes," i.e., taxes targeting nude dancing at adult entertainment establishments. Such taxes generally target establishments where alcohol is consumed, and the proceeds generally fund programs that benefit victims of sex crimes (or similar). Some of these taxes are "erotic-expression taxes" that specifically target sexual dance or other expressive conduct, while others are more general "nudity taxes" that are not defined by reference to expressive conduct.
State governments have defended such taxes against First Amendment attack on the theory that (1) such taxes combat negative secondary effects and (under City of Renton v. Playtime Theatres, Inc.) should be analyzed under intermediate scrutiny as though they were content-neutral, and (2) such taxes survive intermediate scrutiny, given sufficient evidence of the link between the establishments and the secondary effects.
I make two independent claims here. First, erotic-expression taxes are subject to strict scrutiny because they are content-discriminatory. The Renton framework has never been applied to taxes (as opposed to regulations). Nor should it be extended to taxes: on the contrary, a strict-scrutiny approach is more consistent with modern First Amendment caselaw.
Second, for both erotic-expression taxes and nudity taxes, even if courts apply intermediate scrutiny, these targeted taxes are constitutionally vulnerable. A number of possible governmental interests are impermissible because they are themselves speech-suppressive or discriminatory; some other interests are potentially valid, but the targeted taxes do not further those interests more than general taxes. The interest in fighting a secondary effect can be valid, but only under stringent conditions that are often not met in practice.
Lawsuit Against Netflix Over Use of Man's Photo in The Hatchet Wielding Hitchhiker Can Go Forward
From Judge David Godbey's opinion today in Hazlewood v. Netflix, Inc. (N.D. Tex.):
This case arises from the use of a photograph of Plaintiff Taylor Hazlewood in the film The Hatchet Wielding Hitchhiker ("the Film"), published by Defendant Netflix, Inc. in early 2023. The Film is a true crime documentary about Caleb McGillvary, a hitchhiker who achieved viral media attention after rescuing a woman from an attack but was later convicted of the murder of a man named Joseph Galfy.
The Film includes the use of a photograph of Hazlewood holding a hatchet. Hazlewood alleges that the photograph was taken from his personal Instagram page without his knowledge or permission. Hazlewood also alleges that the photograph is unrelated to McGillvary and is used out of context in the Film…..
Hazlewood has met his burden to make out a plausible claim of defamation…. Hazlewood alleged that Netflix published a film including his image. The image was accompanied by audio and text stating "Is this a guardian angel or a stone-cold killer?" and "You can never trust anyone." Hazlewood alleged that the use of his image in this context paints him in a "sinister and defamatory light" and implies a connection between Hazlewood and McGillvary that does not exist. Hazlewood included in his complaint a sample of messages from individuals expressing concern and confusion over his involvement in the Film and his connection to the incident involving McGillvary. This includes an instance in which a friend's mother believed, based on Hazlewood's appearance in the film, that he was connected to McGillvary or was himself a murderer….
Hazlewood's complaint also alleged that Netflix "exercised no due diligence procedures" regarding the context of the photograph and did not ask his permission to use the photograph. This allegation goes to whether Netflix acted with the requisite degree of fault for a defamation claim. If the plaintiff is a private individual, the degree of fault that must be shown is mere negligence. The allegation that Netflix failed to determine the context and ownership of the photograph before using it is sufficient to establish a plausible claim that Netflix was negligent with regard to the use of the photograph and the truth of the statement associated with it in the film.
Those Who Support Israel Against Hamas Should also Back Ukraine Against Russia
The justifications for backing Israel's struggle also apply in spades to Ukraine's.
Hamas' shocking terrorist attack against Israel has galvanized bipartisan support for Israel's cause in the US. But many conservative Republicans who back Israel simultaneously oppose continued support for Ukraine in its struggle against the very similar assault by Russia. GOP Sen. Josh Hawley says "[a]ny funding for Ukraine should be redirected to Israel immediately." This pro-Israel/anti-Ukraine stance is incoherent. The moral and strategic rationales for backing Israel also apply to Ukraine, in some cases with even greater force. Both states are liberal democracies threatened by authoritarian mass murderers who seek to destroy them. And Russian atrocities are strikingly similar to those of Hamas, except on a much larger scale. There is no good moral justification for supporting Israel's cause that does not also apply to Ukraine's. The strategic rationale for backing Israel also applies to Ukraine, with at least equal force.
I fully recognize that pro-Israel/anti-Ukraine and support for both aren't the only possible combinations of views on these issues. Some Western leftists are pro-Ukraine and anti-Israel. And some people (e.g. right-wing anti-Semites, anti-American far leftists, consistently dovish/isolationist libertarians) oppose aid to both Ukraine and Israel. But, at least in the US, these latter two positions are relatively marginal. From President Biden on down, mainstream liberal Democratic supporters of Ukraine overwhelmingly back Israel against Hamas, as well, with rare exceptions such as members of the "Squad." Those who oppose aid to both Israel and Ukraine are, if anything, even more marginal. By contrast, pro-Israel/anti-Ukraine is the position of a large part of the political right.
Thus, in this post, I focus on critiquing the pro-Israel/anti-Ukraine position. It's the most politically significant alternative to supporting both.
Hamas's atrocities are now well-known to anyone who has followed this conflict, or just watches the news. They have slaughtered innocent civilians, including numerous women, children and even babies. Hamas terrorists have also taken numerous hostages, including kidnapping small children for that purpose. And it is likely they have engaged in widespread rape and sexual assault.
Russian forces in Ukraine have committed all the same types of atrocities - and on a much larger scale. Like Hamas, the Russian army has deliberately targeted and massacred civilians. They have gone so far as bombing maternity wards, and leveling entire cities. Like Hamas terrorists, Russian troops have engaged in mass rape and torture of civilians. And, like Hamas, the Russians have abducted civilians, including many children. The International Criminal Court has issued an arrest warrant for Vladimir Putin, because of his involvement in the child abductions. The number of Ukrainian children seized is likely in the tens of thousands or higher.
Russia is also similar to Hamas in seizing civilian hostages - including Americans - to exchange for its criminal operatives. For example, they detained US basketball player Brittany Griner, and eventually exchanged her for Viktor Bout, a Russian intelligence asset and arms supplier to terrorists. The latest such Russian hostage-taking is the detention of Wall Street Journal reporter Evan Gershkovich. Russia's hostage-taking operations have more of a veneer of legality than Hamas's, usually including trumped-up charges of one kind or another. But that should not mislead us about their true nature.
Just as Hamas seeks to destroy Israel entirely and impose a brutal despotism over the conquered land, so Putin seeks to establish Russian rule over all of Ukraine (which he denies has any right to exist as a separate nation), and impose the same sort of tyrannical regime that he established in Russia itself, and previously occupied Ukrainian territories. Neither's ambitions are confined to marginal territorial adjustments.
While Russia's atrocities are similar to those of Hamas, there is an enormous difference in scale. Hamas's recent onslaught has killed over 1000 Israeli civilians (a figure likely to rise as the victims are counted more fully). Innocent civilian victims of Putin's war number in the tens of thousands. The Russian military have also raped and tortured far more people, and kidnapped vastly more children than Hamas.
This difference is not because Hamas is more ethical than Putin. If they could kill as many Israeli civilians as Russia has Ukrainian ones, they would surely do it. But the difference in scale matters when it comes to assessing the moral urgency of the situation. Other things equal, larger-scale atrocities deserve higher priority. They certainly cannot be assigned a lower one.
Hamas' radical Islamist ideology is not only at odds with Israel, but with Western liberal democratic values more generally. They seek to establish a brutal medieval despotism, suppressing dissent, religious minorities, and LGBT people, among other victims. Putin's Russia is a similarly brutal tyranny. It too suppresses dissent, persecutes minorities, and oppresses gays and lesbians. And, like the radical Islamists, Putin has repeatedly made clear he is an enemy of Western liberal democracy, not just Ukraine. His anti-liberal crusade long predates the current Ukraine war. Like Hamas, the Putin regime is an enemy of the West generally, not just of its immediate opponent on the battlefield.
Russia is a far larger and more potent enemy than Hamas could ever be - even in combination with its Iranian sponsors. And it's worth noting that those Iranian sponsors back Russia, as well. All of that strengthens the purely strategic case for helping Ukraine against Russia, even aside from moral considerations. That case is at least as strong as the strategic rationale for backing Israel against Hamas.
The Israeli and Ukrainian governments are not perfect paragons of virtue. There are genuine wrongs in Israeli policy towards the Palestinians, including violations of civil liberties, and unjust seizures of private property (partly curbed by the Israeli Supreme Court). The present right-wing government's effort to neuter the judiciary (now suspended as a result of the war) threatens to create a dangerous tyranny of the majority, if it were to pass. Ukrainian government policy also has illiberal aspects, which I have condemned.
But, despite very real flaws, there is a vast moral chasm between Ukraine and Israel on the one hand, and their respective enemies on the other. The former are functioning, if highly imperfect, liberal democracies. The latter are horrific tyrannies. In each conflict, one side systematically targets civilians, rapes and tortures the innocent, kidnaps children, and takes hostages, while the other does not.
As always, there is a risk that even liberal states with a just cause will engage in unjust policies during wartime. America's own history has all too many examples, such as the internment of Japanese-Americans during World War II. We should not give either Israel or Ukraine a blank check in this regard. But there is an enormous difference between a state that has liberal values, yet sometimes fails to live up to them, and one that utterly rejects those values, as Russia and Hamas do.
Just as we should not overlook Israeli and Ukrainian shortcomings, we should also be careful to avoid undifferentiated demonization of Russians and Palestinians. In previous writings about the Russia-Ukraine War I have criticized imputations of collective guilt to Russians, and made the case for opening Western doors to Russians fleeing Putin's regime. Most of this reasoning is readily applicable to Palestinians, too. But recognizing that Putin's dictatorship and Hamas don't stand for all Russians and Palestinians is entirely compatible with recognizing that we should back efforts to defeat both of these evil regimes. If defeat leads to the collapse of one or both of them, so much the better! Recognizing the humanity of Russians and Gaza Palestinians entails recognition that they deserve to be free of the tyrants that currently rule them.
On all these moral dimensions, there is no good reason to back Israel, but not Ukraine. Both have flaws, but are vastly preferable to their adversaries.
A final possible reason to back Israel, but not Ukraine, is resource constraints. Perhaps we just don't have enough money to help both. But the US aid given to Ukraine since February 2022 (about $77 billion), is barely a rounding error in the federal budget (an annualized rate of less than 1% of the $6.27 trillion in federal expenditures in fiscal year 2022). And the resulting massive damage to the Russian military - one of our principal adversaries - could well actually save us more more money in the future. The Pentagon projects Ukraine will need a similarly modest amount over the next year (about $60 billion).
Israel, which faces a far weaker enemy than Ukraine, can likely make do with much smaller amounts of US aid. If necessary, aid to Ukraine and Israel can easily be offset with elsewhere. There is no shortage of wasteful and harmful federal expenditures! If we really want to deal with our looming fiscal crisis, we should focus on the gargantuan entitlement spending that is its principal cause.
If there nonetheless is a resource tradeoff, the ally facing a more powerful opponent - Ukraine - deserves priority. Israel can, if need be, defeat Hamas with little or no US aid, beyond diplomatic support and intelligence-sharing. Israel's forces are vastly superior to Hamas's in both quantity and quality. That will remain true even if the Lebanese terrorist group Hezbollah enters the war. Ukraine's position relative to Russia is far more difficult. From the standpoint of US geopolitical interests, Russia is a far more important enemy to curb than Hamas, precisely because of its greater power. At the very least, there is no good reason to assign it a lower priority.
I have not, in this piece, sought to outline anything like a comprehensive US strategy for these two conflicts. Each poses a variety of tactical and strategic issues that I cannot hope to cover here. But the points made do serve the more limited purpose of showing how there is no good rationale for the position of backing Israel against Hamas, but not Ukraine against Russia. The moral and strategic rationales for the former apply with equal or even greater force to the latter.
UPDATE: The original version of this post included an incorrect calculation of the percentage of the federal budget going to aid to Ukraine. I apologize for the mistake, which I have corrected.
Now Published: "The First Amendment and Refusals to Deal"
It's part of the University of the Pacific (McGeorge Law School) Law Review symposium on Israel, Palestine, and the First Amendment, and it's based on amicus briefs that I had filed together with Profs. Michael Dorf and Andrew Koppelman. You can read the article here; here's the opening paragraph and the Introduction:
Anti-BDS laws, which bar government contractors from boycotting Israel, are generally constitutional—for the same reason that anti-discrimination laws are generally constitutional: Refusals to deal are, outside some narrow situations, generally unprotected by the First Amendment.
Decisions not to buy or sell goods or services are generally not protected by the First Amendment. That is the necessary implication of Rumsfeld v. Forum for Academic & Institutional Rights, and it is the foundation of the wide range of anti-discrimination laws, public accommodation laws, and common carrier laws throughout the nation.
Thus, for instance:
- A limousine driver has no First Amendment right to refuse to serve a same-sex wedding party, even if he describes this as a boycott of same-sex weddings (or part of a nationwide boycott of such weddings by like-minded citizens).
- A store has no First Amendment right to refuse to sell to Catholics, even if it describes this as a boycott of people who provide support for the Catholic Church.
- An employer in a jurisdiction that bans political affiliation discrimination has no First Amendment right to refuse to hire Democrats, even if it describes such discrimination as a boycott.
- An employer that is required to hire employees regardless of union membership has no First Amendment right to refuse to hire union members on the grounds that it is boycotting the union.
- A cab driver who is required to serve all passengers has no First Amendment right to refuse to take people who are visibly carrying Israeli merchandise.
Wisconsin Court Orders School District Not to Socially Transition Children Without Parents' Consent
"Kettle Moraine School District is enjoined from allowing or requiring staff to refer to students using a name or pronouns at odds with the student's biological sex, while at school, without express parental consent."
From T.F. v. Kettle Moraine School Dist., decided last week by Judge Michael Maxwell (Wisc. Cir. Ct. Waukesha County) (some numbering omitted):
The Complaint alleges that the Kettle Moraine School District (hereinafter "Kettle Moraine") violated parental rights by adopting a policy to allow, facilitate, and affirm a minor student's request to transition to a different gender identity at school without parental consent and even over the parents' objection….
Findings of Fact
T.F. and B.F. had a daughter ("A.F.") that attended Kettle Moraine Middle School ("KMMS") in the Kettle Moraine School District. A.F. began questioning her gender identity and T.F. and B.F. moved her to a mental health center and that center focused on "affirming" this new gender identity.
A.F. then returned to the school with some parental support for the identity, but T.F. and B.F. ultimately changed course and went to the school informing them they wished to refer to A.F. by her legal name and female pronouns. The District replied by saying they will follow the guidance of A.F. in what pronouns to use, even over parental objections.
In response T.F. and B.F. withdrew A.F. from the District and shortly thereafter A.F. concluded that she did not want to transition genders….
Social transitioning of one's gender is a decision that should usually be preceded by a mental health professional ("MHP") conducting a psychological assessment in order to see the benefits and challenges of such a transition. Social transitioning represents "one of the most difficult psychological changes a person can experience." …
Social transitioning is a "powerful psychotherapeutic intervention" that likely reduces the number of children desisting from their transgender identity and can lead them to using puberty blockers and cross-sex hormones, which carry known risks. Thus, informed consent from the parents must be obtained before socially transitioning a child. Social transitioning without full support of one's parents can result in the child living a double life which can be "psychologically harmful."
Libel Lawsuit Against N.Y. Times and Taylor Lorenz, Related to Meaning of Word "Leaked," Can Proceed
From Judge Edgardo Ramos's decision Tuesday in Jacob v. Lorenz (S.D.N.Y.) (the underlying allegedly libelous article appears to be the one here):
Plaintiffs Ariadna Jacob and her company, Influences, Inc., brought this defamation action against Defendants Taylor Lorenz and the New York Times. Plaintiffs allege that a New York Times article authored by Lorenz included several defamatory statements about Jacob….
[T]he Court granted in part and denied in part Defendants' motion to dismiss the second amended complaint … on June 21, 2023. The Court held that Plaintiffs had sufficiently alleged a claim with respect to one statement in the article suggesting that Jacob had leaked an individual's nude photographs. Defendants now move for reconsideration and ask the Court to dismiss the surviving claim based on that statement…. [T]he motion is DENIED….
[The] lone surviving statement—referred to here and in the Court's prior opinions as Statement 12—concerns Jacob's alleged distribution of nude photographs of influencer Devion Young.
On August 11, 2020, Lorenz emailed Jacob and her team with a list of details that she was "planning to report." That list included the assertion that "Ms. Jacob distributed illicit photos of Mr. Young to others (Note: we have screen recordings showing these messages)." Jacob's representative responded with a statement from Jacob's attorney that said: "Illicit photos of Mr. Young were brought to Ms. Jacob's attention. As Influences was working on multiple business transactions with Mr. Young, Ms. Jacob informed an internal consultant of the pictures [sic] existence, but at no point did she publicly 'leak' the photos, as Mr. Young has claimed."
Today in Supreme Court History: October 12, 1977
10/12/1977: Regents of the University of California v. Bakke argued.
Taxes on Wealth and on Unrealized Capital Gains Are Unconstitutional
Moore v. United States: The big tax case before SCOTUS this year.
In Moore v. United States, the Supreme Court will decide this year whether the Ninth Circuit was right in upholding as constitutional taxes on unrealized capital gains and wealth taxes. Ed Meese, Gary Lawson, and I have written an amicus brief filed by Philip Williamson urging the Supreme Court to overrule the Ninth Circuit on both points. Our brief presents the original public meaning of the Sixteenth Amendment and of the requirement that direct taxes be apportioned among the States. We urge the Supreme Court to ignore bad caselaw and to stick to the original public meaning of the constitutional text.
"Trying to 'Absofuckinglutely' Take Down a Montana Business" Creates Personal Jurisdiction Based on Defendant's Online Statements
So the Montana Supreme Court holds, in Groo v. Montana Eleventh Jud. Dist. Ct., written by Chief Justice McGrath, joined by Justices Beth Baker, James Jeremiah Shea, and Jim Rice. A few passages:
The underlying case arises from Groo's purposeful and substantial use of social media to affect the business operations of Triple D Game Farm, Inc. (Triple D). In response, Triple D filed a Complaint and Demand for Jury Trial alleging Tortious Interference with Contractual Relations and Tortious Interference with Prospective Economic Advantage claims against Groo.
Groo moved to dismiss the claims against her for lack of personal jurisdiction. She contends that the statements she allegedly made on social media about Triple D did not create the minimum contacts with Montana as a forum nor constitute purposeful availment of the protections afforded by Montana law—both of which are required for a Montana court to exercise personal jurisdiction over an out-of-state defendant….
[S]imply posting information on the internet for anyone to see is not enough by itself to establish personal jurisdiction over a defendant. However, when a defendant engages in a targeted campaign against a Montana business, tags Montana residents and those doing business in Montana, and encourages them to refrain from doing or continuing actions in Montana, that person has purposefully directed conduct into Montana such that the Due Process Clause allows them to be haled into Montana courts.
May Private Employers Fire (or Refuse to Hire) Employees Because of Their Praise of Hamas (or Praise of Israel)?
It depends on the state (or sometimes even county and city) where the employer is located.
In recent days, we've seen some employers saying they'd refuse to hire people based on those people's praise of the Hamas attack on Israel (or at least certain kinds of praise), see, e.g., this story about one employer [UPDATE: and others] and this statement from another:
(For more on the particular statement that led to the revocation of the offer, see here.) Likewise, one can imagine other employers refusing to hire people based on those people's hypothetical praise of various kinds of Israeli retaliation against the attack. Is that legal, at least for private employers?
The answer is that it generally depends on state law, and sometimes even on county or city ordinances.
There is no general constitutional right of employers to refuse to hire people whose statements or actions are "profoundly in conflict with [the employer's] values as a firm." Federal and state laws, for instance, generally forbid discrimination in employment based on the employee's religion, however much the religion might profoundly conflict with the employer's values.
Today in Supreme Court History: October 11, 1972
10/11/1972: Roe v. Wade argued.
Two Law School Deans on the Massacre in Israel
Moral clarity from Scalia Dean Ken Randall, and lack thereof from NYU Dean Troy McKenzie.
Some other time, I will express my views on when and if university administrators should express opinions about the issues of the day. For now, it's sufficient to note that they do all the time, and in that context should be judged by what they say, when they say it, and how they say it.
Here is Dean Ken Randall, Scalia Law (my law school) in an email I received this morning:
Dear Students, Faculty, and Staff,
Over the past few days, we have watched images of deadly acts of terrorism against Israel. Whether you have friends and family in the region, or your concerns are centered on your classmates and colleagues here at home, please know that my thoughts are with you. Terrorism has no place in our society, and we stand with the Israeli people. Especially in this season when we observe important Jewish holidays, I know that you will offer support to those in our community who are in need during this difficult time.
By contrast here is NYU Dean Troy McKenzie, in response to an official missive sent to law students by the president of the Student Bar Association, defending the massacre:
Dear Members of the NYU Law Community:
Some of you may have seen a message from the president of the Student Bar Association regarding the horrific conflict in Israel and Gaza. This message was not from NYU School of Law as an institution and does not speak for the leadership of the Law School. It certainly does not express my own views, because I condemn the killing of civilians and acts of terrorism as always reprehensible.
The attack on Israel and the subsequent and ongoing hostilities have made this a period of extreme pain and distress for many members of our community. Since the weekend, I have worked with administrators to provide support to students, faculty, and alumni who have been affected by this crisis.
The feelings that divide people in the world at large are certainly present within the Law School, but I hope that we are able to address them with compassion and mutual respect. The Law School's leadership team will continue to provide the resources and support we can.
In addition to implicitly expressing the view that the righteousness of massacring babies and so forth is just a matter of opinion, McKenzie is being far from forthright. While the NYU SBA does not speak for NYU Law as an institution, it nevertheless is not merely a student group, but part of the NYU administration. The SBA has representation on sixteen different law school faculty-student committees, including admissions and faculty hiring.
And compare McKenzie's mealy-mouthed equivocation to this statement by the student's erstwhile employer, Winston & Strawn. One can have a separate discussion as to whether rescinded her offer was inappropriate "cancel culture"--my own general view of this is that when someone says something egregiously stupid, even evil, one should give that person a chance to reconsider and apologize before taking action--but regardless, W&S managed the moral clarity that Dean McKenzie did not.
UPDATE: Dean Paul Caron, Pepperdine Law School: "Our Pepperdine Caruso Law community is praying for [Professor] Michael [Helfand] and his family [who were in Israel at the time of the attacks], all of our Jewish faculty, staff, students, and alumni, the country and people of Israel, and all people in the region during this horrific time. We are heartbroken by the devastating suffering and loss of innocent lives."
Defendant Attempting to Permanently Seal the Entire Record in a Pending "Revenge Porn" Case
From a memorandum supporting a motion to permanently seal the entire case in Doe v. Crawford (S.D. Miss.):
Adopting the pseudonym "Jane Doe," Plaintiff filed this case against Defendant Crawford pursuant to 15 U.S.C. § 6851. She alleges Crawford engaged in "revenge porn" by transmitting a sexually intimate photograph of Doe to another man—Doe's current romantic partner—with the intention of embarrassing Doe. In describing her relationship with Crawford, however, Doe states only that they were in a "romantic relationship." In truth, Doe's relationship with Crawford is, and was, more than simply "romantic." …
The Court should seal the record of this case because Crawford's defense necessarily requires him to identify Doe and her relationship to Crawford, as well as disclose intimate details of their relationship…. To defend himself, Crawford must (1) identify Doe and her relationship to Crawford, and (2) disclose intimate details of that relationship in all substantive pleadings, including exhibits, before the Court….
Another procedure will not suffice because 15 U.S.C. § 6851 allows Doe to remain anonymous, yet Crawford must necessarily disclose Doe's identity to defend himself; therefore, sealing the entire case is the only option that allows Doe to litigate her claim anonymously and allows Crawford to defend himself….
