I was asked to note an AALS panel, put together by the AALS Section on Women in Legal Education, and I’m happy to do so:
Saturday, Jan. 9, 8:30–10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and FitnessCyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender– or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/ .) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all abusive posters impact the calculus?
Panelists:
Deborah L. Rhode, Stanford Law School
Jack M. Balkin, Yale Law School
Brad Wendel, Cornell University School of Law
Lyrissa Lidsky, University of Florida, Levin College of Law
Danielle Citron, University of Maryland School of Law
Moderator: Elizabeth Nowicki, Boston Univ. School of Law, Tulane Law School
But I should also express my worries about the proposals that the panel appears to be aimed at contemplating.
If the panel were just planned to discuss the possibility that schools and state bars consider criminal and constitutionally unprotected conduct by students — such as making threats — that might be one thing. But the reference to “outrageous gender– or race-specific comments” suggests that the proposals would likely go considerably further.
That reference also suggests that we aren’t even talking about a general civility code, equally applicable to al outrageously rude insults. There are many familiar problems with such general codes — but the “outrageous gender– or race-specific comments” focus suggests that this code is aimed at suppressing offensive viewpoints, and not just uncivil ways of expressing all viewpoints. The rationale for that can’t just be that rude law students make rude lawyers, who might browbeat witnesses, make life hard for litigants, opposing counsel, and judges, and so on. (That rationale would itself be insufficient to justify denying someone a license to practice law based on otherwise constitutionally protected speech, but I set that aside for now.) The rationale must be that people who “outrageous[ly]” express racist or sexist views are unfit to be lawyers, presumably because they’ll act on those views in the future.
Once accepted, this rationale would be very hard to cabin. Obviously it would be hard to resist extending it to “outrageous sexual-orientation-specific comments,” or comments that express “outrageous” views criticizing Islam. Equally obviously it would quickly apply to all speech, on websites or otherwise. And of course who would be the judge of when the expression of an opinion — whether about typical students, about students who have injected themselves into public debates, about law professors, or even about a race, sex, sexual orientation, or religion more broadly — becomes “outrageous”? Who decides what is legitimate criticism and what is “smearing”? Who decides what constitutes “harassment” (perhaps under the now-familiar but still extremely vague and broad “severe or pervasive enough to create a hostile, abusive, or offensive educational environment based on race, religion, sexual orientation, etc.” standard)? Why, disciplinary committees in law schools staffed by law professors, plus perhaps disciplinary committees in state bars.
Many law students (not all, but very many) are already widely known to be very cautious about expressing views that they think the majority of their classmates, or even a vocal minority, may find offensive. The threat of social ostracism and subtle but career-jeopardizing retaliation by professors and even classmates, who will soon become potential colleagues and employers, is quite powerful. (Some such threat of retaliation through social pressure may even be good, though it always has potential costs to open discussion.) But when a few comments — whether deliberate or said in the heat of debate — can lead to the denial of a bar card (after you’ve taken out $150,000+ in student loans), how many students would feel safe discussing, say, the possible pluses of racial or religious profiling, or arguments that homosexuality is immoral, or the possibility of mental differences between the sexes or between races, or the alleged evils of Islam, or the question whether many students or professors of particular races lack sufficient qualifications and were instead chosen based on affirmative action? How many would feel sure, with their professional futures on the line, that of course no hostile low-profile university committee would treat the comments as “outrageous,” “smearing,” or “harass[ing]”?
I’m sure that most backers of these restrictions would stress that of course they’re not trying to shut down substantive debate, only incivility. But once viewpoint-based restrictions are accepted, once speech can be suppressed because it’s “outrageous” or “smearing,” it’s pretty hard to have much confidence that substantive (but to some “outrageous”) discussion of ideas will remain untouched; and even if actual punishments for such speech are rare, the risk of punishment may powerfully deter the substantive debate as well as the nonsubstantive smears (of which I agree there is plenty). That has certainly been the experience with “civility codes” at university campuses, and governmentally coerced restrictions on “harassment” in workplaces. It would be hard to avoid the same effect in attempts to exclude lawyers from the bar on the grounds that their speech bespeaks lack of “character and fitness.”
Now the panel announcement, like most such panel announcements, doesn’t lay a proposal on the table; I can only speculate, based on the questions in the announcement, what speech restrictions some people might propose. (In my experience even the panel discussions themselves often don’t focus on specific proposals, but rather discuss the issues more generally.) But I think the questions can indeed give rise to informed speculation about what some people are discussing. So I thought I’d express my views on the subject, recognizing that we’d have to have a more focused debate should there be some more tangible proposal for denying bar membership to people who, while students, have made “outrageous gender– or race-specific comments (often about other students or faculty members).”
Finally, I of course acknowledge that the Supreme Court has indeed upheld some restrictions on lawyers that aren’t applicable to ordinary citizens, on the rationale that lawyers are officers of the court. (See, for instance, Gentile v. State Bar of Nevada.) But what’s being discussed here is not a restriction on what lawyers can say while they’re representing clients, or what they can say in court. It’s not a greater level of tolerance for restrictions on false statement of fact when they are made by lawyers. (Some courts impose a negligence standard for false factual statements by lawyers about judges or court proceedings, rather than a knowledge/recklessness standard.) It’s not even a requirement that a would-be lawyer take an oath to support the Constitution, a requirement that the Court upheld only because it had been interpreted “extremely narrow[ly] and [in a manner] fully cognizant of protected constitutional freedoms,” basically just as an oath that one will support the Constitution (while of course being perfectly free to advocate that it be changed). What’s being discussed here is something that would affect a far broader range of commentary by would-be lawyers, whether online, on the university campus, or elsewhere.
(A note to commenters: While I don’t support the government’s denying people professional licenses because of those people’s speech — except when it falls into some of the usual narrow categories of unprotected speech — or universities’ disciplining students based on such speech, I not only support but enthusiastically practice denial of access to our blog to people who say things that are vulgar or pointlessly rude or insulting. I trust that the underlying distinction is obvious to our readers. So please keep the comments substantive and polite; remember, it’s a big Internet, and if you want to be rude, you lose very little by being rude on your own blog rather than on ours.)
EvilDave says:
Why does this surprise you?
Since the 70s, when The Left was all about the mantra “The Personal is Political”, they have been very open about having a totalitarian ideology.
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January 7, 2010, 2:58 amleo marvin says:
Totalitarian? That’s what you decided to go with?
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January 7, 2010, 3:23 amReader says:
If you want to see where this is headed just look at the many cases taken up by FIRE that involve the use of “dispositions” to evaluate student-candidates in teacher education and social work. One example:
http://www.thefire.org/case/686.html
Search FIRE’s site for “dispositions” to find many more.
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January 7, 2010, 3:55 amNick says:
A question I’d ask is, “Where’s the outrage?” Does the university, in each case, even bother to wait until after someone was outraged? In practice, not necessarily, no. Outrage isn’t necessary and in fact beside the point. The point’s to enforce a taboo. It’s the opposite of real scholarship. The university is remade into a small police state, or a village, or religious sect, renouncing the wicked world outside.
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January 7, 2010, 4:10 amThe Colonel says:
Mr. Volokh, I really enjoy your website. Good article.
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January 7, 2010, 7:19 amMaureen says:
How far back do they mean to go? Will playground fights make one unfit to become officers of the court? Are people to be judged on whether their parents or grandparents are politically correct? Are law students to be called upon to denounce their classmates in order to reduce future competition for jobs?
Oh, the possibilities are endless.
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January 7, 2010, 7:55 amSW says:
Reading the whole description it looks like the outrageous comments concern deals with those directed at specific people. Prof. do you analyze the issue differently if it’s cabined to particular individuals? And would your analysis change if it were repeated incidents toward the same target, instead of one (eg., bullying)? (Your last paragraph is greatly appreciated).
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January 7, 2010, 7:58 amDennis says:
As you note, it’s hard to judge much from a panel’s topic description. Program planners often make them as provocative as possible. Possibly all the speakers will oppose content-specific speech restrictions. A follow-up report from someone who attends the panel, or better yet from someone who gets and analyzes the papers from the speakers, would be extremely interesting.
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January 7, 2010, 8:25 amPersonFromPorlock says:
What’s with the presumption that lawyers are, or ought to be, especially moral anyway? Ye gods, congressmen are lawyers!
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January 7, 2010, 8:35 amMikhail Koulikov says:
Maybe the relevant idea here is along the lines of ‘conduct unbecoming...’ (UCMJ article 133/10 USC 933).
And my thinking is, hey, if you as a student are doing something that “may raise fitness and professionalism issues”, make sure also doing other things that put you on very solid ground as far as fitness and professionalism go.
Well, and, don’t piss people off/get people to notice you.
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January 7, 2010, 8:49 amsteve says:
And none of this would be a problem if the legal community got out of the business of deciding who is fit to be an attorney.
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January 7, 2010, 8:52 amlgm says:
Preemptive negativity: The panel proposed no criteria or remedies. Yet you feel free to oppose the criteria and remedies you are sure they will propose sight unseen. Maybe they will surprise you.
Politeness: You write: “Many law students (not all, but very many) are already widely known to be very cautious about expressing views that they think the majority of their classmates, or even a vocal minority, may find offensive.” I should hope so. Sometimes offensive things need to be said. But one should consider the sensibilities of others too.
Character: If lawyers are required to be people of good character, the person who posts: “Women named Jill and Hillary should be raped.” (from the linked post) should be disqualified. A person who writes: “Judaism is a religion of greed.” or “Islam is a religion of killing.”(hypothetical) should at least get a warning.
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January 7, 2010, 8:54 amPatrick216 says:
Remember–
You can’t have an effective command & control antidiscrimination/affirmative action/etc. regime without suppressing speech that challenges that regime’s goals. If your goal is to increase the participation of women and racial and sexual minorities in the law, you don’t want things standing in the way of that goal. One such obstacle would be law students, professors, and attorneys saying things that offends those groups. Thus, you outlaw that speech.
For folks like me who believe in a robust free speech right, this is very troubling. However, the folks “in charge” these days in academia and other places view antidiscrimination as being a paramount right which can only be enforced through command & control laws.
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January 7, 2010, 9:39 amBD says:
I consider it far more outrageous for groups of people in a position of authority try to regulate speech than for certain individuals to make racist or sexist remarks, whether on the internet or otherwise. A free society can certainly survive a few knuckleheads making “offensive” remarks. It obviously can’t survive if we give in to whatever authoritarian impulses our leaders might feel in response to such remarks.
Seriously, isn’t it time we got over the idea that we can just LEGISLATE a better world?
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January 7, 2010, 9:50 amLongCat says:
So would you require a warning if I say Christianity is homophobic? That Scientology is a scam? That Unitarianism is exceedingly dull?
Who gets to decide what is worthy of a warning? What is the effect of this warning?
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January 7, 2010, 9:54 amDenver says:
Forget policing bad thoughts of students. This is a profession that can’t police people with licenses. How about if we start with actual licensed lawyers and their actual conduct as the basis for disciplinary action. Imagine the delightful day when judges actually enforce the ethics rules that require counsel to cite and deal with cases that are contrary to their position. When lawyers are disciplined for having witnesses lie (“I don’t specifically recall”). When lawyers are disciplined for misrepresenting the holdings in cases in their pleadings.
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January 7, 2010, 10:13 amHans Bader says:
This proposal sounds like a bad, and dangerous, idea.
I have no history of bar discipline or bar complaints, and I have represented clients of different races, sexes, religions, and sexual orientations, and criticized discrimination based on race, sex, and many other such factors.
But I wonder if this could have been used against me when I applied for the bar, since I do not share some views prevalent in the strongly left-wing legal profession, and some liberals deem even mainstream conservative views (as well as individualistic Libertarian views) to be bigoted. (The Harvard Journal of Law and Public Policy once noted that Clinton handily beat the elder Bush among lawyers by nearly a 2-to-1 margin, while beating him by only a fairly narrow margin among the general public. Even in conservative states like Tennessee, the legal profession is rather liberal. See Russell G. Pearce, The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics, 75 Fordham Law Review 1339 (2006). The liberal Seattle School District once taught that “individualism” is a form of “cultural racism,” as this blog noted a couple years ago).
When I was a student at Harvard Law School, I criticized an attempt to give a tenured professorship to Catharine A. MacKinnon, citing her history of anti-male remarks and support for censorship. This was wrongly, but widely, perceived among Harvard’s large left-wing faction as proof of my supposed sexism, since MacKinnon was a feminist woman. For example, I received a hate call accusing me of “verbally, visually, and emotionally assaulting women” because I posted copies of my published letters to the editor in the Boston Globe, Harvard Law Record, and Harvard Crimson criticizing MacKinnon on law school bulletin boards.
I am sure that some of my classmates would have been happy to keep me out of the bar because I did not share their left-wing ideology and love for affirmative action. One of my hallmates, who was on the Harvard Law Review (and advocated created a sexual-orientation-based affirmative action policy for the law review), became agitated merely on seeing my identical twin brother’s face in Harvard Law’s first-year facebook, assuming that my brother’s outlook on legal issues would be like mine. (My brother decided at the last minute not to go to law school, and wisely went to Wall Street instead, where the pickings were better).
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January 7, 2010, 10:45 amDaniel Charlies says:
Can you please define pointlessly rude? Sometimes if the point hits the target, and he doesn’t much like it, that’s considered bannable to some conspirators, right?
Thanks a bunch! And have a nice day.
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January 7, 2010, 10:50 amDaniel Charlies says:
To update (make more realistic) your list of possible classroom offenses in addition to those afraid to speak out that racial/religious profiling might be necessary in our growing War on Islam, and those who might be silenced in questioning whether their professors were benefits of affirmative action any time in their careers ... you might add the growing accusations of “anti-semitism!” any time people question whether Jews and a pro-Israel homeland contingent is overrepresented in our academies and media commentaries and perhaps this emotional tie to the homeland and the Holocaust fresh in their ancestors’ memories influences their strategies for American actions.
Thank you, and have a nice day!
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January 7, 2010, 10:55 amThe Watcher says:
The Watcher recalls Matt Hale. He further recalls the great joy that rang through academic and bar circles when the court ‘ruled the right way.’
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January 7, 2010, 10:59 amThe Watcher says:
The Watcher recalls that MacKinnon became an anti-feminist once she fell in love with Dr. Jeffrey Masson.
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January 7, 2010, 11:03 amDanny j Boggs says:
In Re LGM comment: very cautious about expressing views that they think the majority of their classmates, or even a vocal minority, may find offensive.” I should hope so. Sometimes offensive things need to be said. But one should consider the sensibilities of others too.
—————————————-
Isn’t this way too broad? Should you hope that people are very cautious about saying, e.g., “Socialism is Good.”; “Castro has been terrific for Cuba”; or “Guns should be banned.” ?? A lot of people find all of those views very offensive.
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January 7, 2010, 11:16 amJardinero1 says:
My eye caught on to the $150,000 in loans part. Does it occur to anybody that these loans are only possible because of their federally guaranteed nature? Without the demand that these loans drive, would any of the speakers at the forum even have a job?
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January 7, 2010, 11:25 amDonald Kilmer says:
The conundrum introduced, and expounded on by the replies to this post (so far), illustrate well the wisdom of depriving the government (including government funded schools and universities) of the power to punish the conveyance of information (words, pictures — written or spoken) that do not intrinsically have some legal consequence. (e.g., used as an aid to fraud, or solicitation to commit a crime, etc...)
One virtue of the “absolutist” approach to the First Amendment is that we keep the government from creating a code of civility.
The parenthetical remarks at the end of Professor Volokh’s post should be the only acceptable way to deal with obnoxious speech — shunning the perpetrator.
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January 7, 2010, 11:27 amRoyLitmus says:
We just need to accept that there is a certain segment of society that wants there to be one acceptable school of thought on most subjects and anyone who believes otherwise should be ostracized, marginalized, and effectively banned from mainstream civilization.
If you hold an incorrect belief, say you don’t believe diversity is a compelling interest, then you are barred from most employment, housing, and social options and perhaps your beliefs are even criminal if expressed in a certain way. If you want to hold this belief there is no place in society for you except maybe a cabin in Montana.
They may tell you that this isn’t what they want, but it is their real end game.
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January 7, 2010, 11:57 amBlue says:
Truly American society must be blessed with a cadre of lawyers so morally upright, law-abiding, and dedicated to pursuing the Truth that such trivialities as this panel envisages are being entertained!
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January 7, 2010, 12:06 pmADF Alliance Alert » A Future Wave of Speech Codes, Though Enforced Through Exclusion from the Bar and Not Just University Discipline? says:
[...] Volokh writes at the Volokh Conspiracy about proposals being discussed that would punish bar applicants who are deemed to engage in [...]
Chris Travers says:
You’d think so. In fact most people say so. But given their pet concerns, they throw that out the window. Examples include:
“The Muslims are coming!” (in another thread at least one self-classified Libertarian suggested re-engineering our basic ideas of citizenship law to prevent such a threat) and “universal health care.” But the all time, most enduring one is “think of the children!”
I think there are a couple of reasons for this. The first is that seemingly good ideas (fantasy worlds) are often quite seductive and there is a real sense of comfort in a paternalistic government. The second is that no threat is so bad that we cannot imagine it as worse than it is. It is easy to forget that humans can be emotionally tough, wise, and prudent beings, and instead expect the government to protect us from ourselves or from others we perceive as threats).
Finally I think there is an inherent agonal (us vs them) approach to life within each of us that the Right wants to blow out of proportion and the Left wants to suppress.
I am an advocate of very cautious policy making. But my brand of Burkean conservatism finds few friends.
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January 7, 2010, 12:20 pmloki13 says:
Prof. Volokh,
I think it is good that the panel includes Prof. Lidsky. I know her, and she is a staunch advocate of First Amendment rights as well a being the editor of an excellent casebook on First Amendment law.
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January 7, 2010, 1:01 pmTweets that mention The Volokh Conspiracy » Blog Archive » A Future Wave of Speech Codes, Though Enforced Through Exclusion from the Bar and Not Just University Discipline? -- Topsy.com says:
[...] This post was mentioned on Twitter by Walter Olson and tim gier, Eugene Volokh. Eugene Volokh said: A Future Wave of Speech Codes, Though Enforced Through Exclusion from the Bar and Not Just University Disciplin.. http://bit.ly/5l0vGp [...]
Roscoe says:
Newsflash — “Internet is Uncivil, Woman and Minorities Hardest Hit.”
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January 7, 2010, 1:14 pmJ Murphy says:
Maybe I am expecting too much, but as a member of the bar, I expect lawyers to be in the vanguard to protect our civil rights, including free speech, not, as an example, put our talents to justifying speech codes. There was a time when journalism professors, history professors, hell, even high school civics teachers were quite vocal in protecting unpopular speech and other civil rights. Now it seems that members of the Academy are the authors of the speech codes. Did anyone from Duke’s Law School exercise their right to free speech and take to task the administration and the notorious 88 professors who immediately publicly condemned the framed Lacrosse players? Or were they cowed by political correctness, or a speech code? These speech codes cause real harms.
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January 7, 2010, 1:22 pmJack D says:
It seems to me that there is a sly segway going on here between “cyber –stalking” which is presumably oriented toward one particular individual (and would not in many cases be protected speech) and “gender and race specific comments” directed at groups. It appears that the proponents are intentionally trying to blur the rather clear lines between the two so that the former can be used as a pretext to regulate the latter. This of course fits in well with the leftist ideology of “group rights” where you possess rights and receive benefits not as an individual but due to your membership in some specific and aggrieved race, gender or orientation group (as long as that group is not white male heterosexual).
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January 7, 2010, 1:29 pmLetalis Maximus, Esq. says:
Go ahead and keep raising these young lawyers like hot house flowers.
Us street fighters will eat them for breakfast.
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January 7, 2010, 1:29 pmSuperSkeptic says:
Professor Volokh says:
But then he also says:
Do you not see the inconsistency here, Professor? Why do you support “the usual narrow categories of unprotected speech” when doing so inherently creates a regime in which “viewpoint-based restrictions are accepted”? Why are the slippery-slope arguments you champion not applicable here?
* * *
When you need a license to do something... consequences should be obvious...
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January 7, 2010, 1:31 pmChris Travers says:
I would second this at least as far as obscenity law is concerned.... I can see fighting words being outside the first amendment protection as with true threats, at least as narrowly construed in both these cases. But obscenity is different because it is viewpoint-specific and it is tied to vague, nebulous community standards which are subject to change without notice.
It seems that if we already might hold purely textual or visual fictional works portraying child/adult sexual relations, or paintings of human/animal sexual relations as potentially (in some communities) outside the reach of the first amendment, I don’t see what makes this inherently different from outrageous racial or religious slurs.
I.e. what would be inherently different between a community holding that some of Mapplethorpe’s photos were obscene and hence unprotected and holding that the phrase “Kill the niggers” was unprotected even in the absence of a true threat (as was repudiated in Brandenburg v. Ohio)?
It seems to me that first amendment law is very inconsistent in this issue and the solution is more rather than less free speech protections.
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January 7, 2010, 1:40 pmConcerned Citizen says:
This is another good reason why admission to the bar needs to be done through a criminal background check and test — that’s it. If someone expresses an opinion, that’s their opinion. If someone is convicted of a crime, that alone should be reason to be rejected from the bar. You guys need to be careful, when there are too many laws, everyone’s a criminal.
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January 7, 2010, 1:41 pmMike Jackson says:
I’m more interested in and outraged at the implied consensus that only minorities and women deserve protection. Why no mention of the obvious flaws in our application of civil rights protection?
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January 7, 2010, 1:42 pmDonald Kilmer says:
Dear SuperSkeptic:
I hope it was clear from my comments that shunning does not equal legal sanction; except for being able to exclude the target of the shun from private property. But we already have that right, whether the person is being obnoxious or not.
Having been both a member of a trade union (machinist) and a professional association (lawyer), I see no difference in the way they operate — lumping in the good with the bad.
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January 7, 2010, 1:46 pmInstapundit » Blog Archive » EUGENE VOLOKH: A Future Wave of Speech Codes, Though Enforced Through Exclusion from the Bar and No… says:
[...] EUGENE VOLOKH: A Future Wave of Speech Codes, Though Enforced Through Exclusion from the Bar and Not Just Universit... [...]
vince52 says:
The Edict of Milan legalized Christianity in 313 AD. The ensuing period of toleration was interrupted by re-institution of pre-Christian state religion by the Emperor Julian, but ultimately led to the edict in 380 AD known as the Cunctos Populos, by which all citizens of the Empire were required to be Christians, and all forms of heresy were outlawed.
I mention these esoteric historical facts because they exemplify a tendency that I see all around me. Possessors of “the truth”, when they are on the outside, advocate toleration. Once inside the power structure, possessors of truth remorselessly campaign against heretics, old and new. If the system of free expression is to be more than an interregnum, it needs constant, vigilant, articulate defense.
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January 7, 2010, 1:55 pmTwirip says:
One is an incitement to murder, the other, isn’t.
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January 7, 2010, 2:03 pmfishbane says:
It seems notable to me that so many wish to contemplate slippery slopes that nobody, at least yet, has mentioned, aside from those who wish to argue against them.
And very few have acknowledged that the actual speech in question was an exhortation towards felony sexual violence directed at other law students. Now, one can claim that the law students who said that other law students “need to be raped” didn’t really mean to promote the idea that those students should, in fact, be raped, but if we’re talking about slippery slopes, how are you going to draw that line? Would it be acceptable to promote burning crosses on some other law student’s lawn (arguably, “only” property damage as opposed to sexual violence, so presumably less sanctionable) if the speaker didn’t “really” mean it?
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January 7, 2010, 2:07 pmAndy McGill says:
My years in law school were the time of the least free speech in my life. Full classrooms could barely talk about subjects like abortion or civil rights. A few students would recite the politically correct line and everyone else just kept their mouths shut. Contract class drew more vigorous debate then Constitutional issues.
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January 7, 2010, 2:09 pmEugene Volokh says:
SuperSkeptic and Chris Travers: I’m not wild about all the existing exceptions, either, and in particular the obscenity exception. But they have long been recognized, they are unlikely to go away, and this is not the place for me to fight them. In this point, I’m taking things one battle at a time — I’m arguing against new restrictions, without challenging the long-accepted ones.
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January 7, 2010, 2:10 pmRowerinVA says:
I’m not minimizing rudeness but this sentence:
... calls into question the bona fides of the whole enterprise. OF COURSE internet stalking is “often” directed at women and minorities — such groups are the majority of the population. In the US, women make up 52% of the population and non-whites make up 33% and the combination is about 64%. So the sentence should read ...
internet stalking is
oftenusually directed at women and minorities... even if women and minorities were treated the exact same as white men.
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January 7, 2010, 2:12 pmChris Travers says:
Only if intended and likely to cause imminent lawless action. The court ruled that the context the quote was found in Brandenburg v. Ohio did not necessarily qualify as such. In fact Brandenburg apparently followed “Kill the niggers” with “we intend do to our part” (see footnote 1 of the majority opinion).
The court ruled in Brandenburg hence that “kill the niggers” by itself was not sufficient incitement to murder as to be categorically banned even when spoken to an audience that wanted to perform such an action.
The point of the post was to call into question the distinction between the Yates/Brandenburg/RAV line of cases and the obscenity line of cases.
Certainly “kill the niggers” even absent true threats, fighting words, and direct incitement to crime seems as great a threat to community sensibilities as obscene literature. But the first is treated as more protected than the latter and for no good reason that I can see.
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January 7, 2010, 2:37 pmSuperSkeptic says:
Dear Donald Kilmer,
I believe we understand each other perfectly; thank you for the clarification.
* * *
Professor Volokh,
Thank you for the response. I can appreciate your politically realistic approach. There’s probably a good lesson for me there. I’m merely agitating for the radical position on GP. (general principle)
* * *
Chris Travers,
Thanks for the concurrence on obscenity, but I found myself disconcerted by your acceptance of “fighting words” and “true threats” exceptions, although I understand your position. I find it more difficult to maintain the absolutist stance against these; however, what attempting to do so has shown me recently is the failure of the speech/conduct dichotomy. There is a broader principle behind our interpretation of the word “speech,” and I suspect that this dichotomy is convoluting/derailing/misguiding our analysis and assessment of it.
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January 7, 2010, 2:40 pmChris Travers says:
Eugene Volokh:
Do you think though that it is inconsistent to allow community standards of sexually explicit material, even if only held in one’s own home, which does not necessarily threaten the intellectual climate, education opportunities, or career options of individuals based on race or gender, but at the same time believe that speech, whether in public or private which potentially does prejudice individuals regarding education and career, cannot be held to similar community standards?
In other words, does support for obscenity laws lead to political correctness standards? In fact is there a relationship here regarding the general expectation of communities from disruption by pure speech? Is it reasonable to expect we can have one but not the other?
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January 7, 2010, 2:43 pmgeokstr says:
The long march through the institutions continues to rachet unidirectionally towards the Collective.
Soon enough 1984 will be here.
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January 7, 2010, 2:47 pmEugene Volokh says:
Chris Travers: The law is necessary filled with inconsistencies, especially since it’s a fundamentally conservative discipline in which old rules often survive just because they’re old. Obscenity law was expected because of a confluence of factors — it had very long been recognized as a First Amendment exception, it was narrowed to the point that it was quite unlikely to interfere with political, religious, or social advocacy, and in recent decades it has almost never been applied in a way that interferes with political, religious, or social advocacy. I still oppose it, but I think that even many of those who support it recognize that it comes near the constitutional line, and has been upheld for historical and functional reasons that would not apply to other attempts to restrict offensive speech that violates “community standards.” We see this, for instance, in the lower court cases that pretty consistently resist attempts to apply obscenity by analogy, for instance to violent video games. Likewise, my sense is that the Court is likely to reject (later this Term) a “depictions of animal cruelty” exception, the arguments for which are a hybrid of the arguments for the child pornography exception and of the arguments for the obscenity exception.
So I do think that the obscenity exception may have a pernicious effect in leading people to endorse other exceptions by analogy to obscenity. And I do agree that the legal system has been in some measure inconsistent in accepting the obscenity exception and rejecting some other proposed exceptions — the clearest example is in the Court’s vagueness doctrine, under which some speech restrictions have been struck down as too vague even though the very vague obscenity laws have been upheld. But I think the answer to that is to recognize that obscenity law has come close to the constitutional line (or, in my view, has gone beyond it), and that we should be hesitant to use this based exception as a basis for arguments by analogy.
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January 7, 2010, 2:55 pmDaniel Charlies says:
In this point, I’m taking things one battle at a time — I’m arguing against new restrictions, without challenging the long-accepted ones.
Trying to note, without being rude...
Some of these long-accepted restrictions include alleged anti-semitism, well policed by groups like Bnai Brith and written into laws as special hate crime enhancing protectors. And these long-accepted restrictions — whether you identify religiously or not — probably include you and your group. Indeed, even your immigration might have somehow been influenced by the Soviet Jew background, which benefitted you directly.
(Is it ok to note these things without being rude?)
Have a nice day.
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January 7, 2010, 3:13 pmlgm says:
There should be a line somewhere between “Jane ***** is a f***i** b***h” and “Feminists demean the value of unpaid housework”. The former should have the potential to get you thrown out of law school. We also draw a line between “art” and things we don’t want children exposed to.
Just because lines are hard to draw doesn’t mean we shouldn’t draw them. Would you argue that all evidence should be admissible because it’s hard to draw the line between admissible and inadmissible?
“Eternal vigilance is the price of liberty” should be amended to: “Eternal vigilance, constant bickering, and ceaseless re-examination are the prices of liberty.”
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January 7, 2010, 3:16 pmfishbane says:
Let me ask my question a different way.
If a law student publicly advocated the rape of a sitting judge, would it be legitimate for the Bar to consider that statement when deciding the fitness of a candidate for practice?
Does the answer change when the target is “merely” another law student? What if it were a practicing attorney with whom the law student might in the future practice? Would it matter if it were someone who practiced law in a different country? An prominent academic law blogger? If the other person were not an attorney at all? Does age matter, such that a 23 year old might be considered immature and thus likely to “grow out of it”, but a 40 year old who returns to law school after a different career would not be?
(Please note that I really, seriously am not advocating any violence against Eugene or anyone else. I’m considering different targets because I’m interested in people’s intuitions here, seem to be in the minority at least here in thinking that there are legitimate concerns, and the transposition, I think, hilights them.)
Considering how lax the Bar is at least most states (as ATL noted today, a convicted cocaine addict who forged legal documents, lied to clients, cost his law firm a small fortune and abused extremely lax parole privileges that I think it is obvious a mere mortal wouldn’t get, still wasn’t disbarred), I wonder what actually is considered unacceptable.
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January 7, 2010, 3:23 pmThe Colonel says:
Oh oh... I have one... “posters who fail to grasp the concept of freedom of speech should be barred from posting” To do otherwise would hurt my extremely sensitive sensibilities.
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January 7, 2010, 3:50 pmfishbane says:
So is it your view that practicing law is an inalienable right which cannot be lost through the exercise of other inalienable rights, unlike, say, driving or posting to a private blog?
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January 7, 2010, 4:10 pmDaniel Charlies says:
Colonel:
Be careful please. You are hurting my feelings and I might just be in one of those long-accepted protected demographic groups. So stop being rude or we will ask to have you removed from this blog.
Thank you and have a nice day.
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January 7, 2010, 4:11 pmDaniel Charlies says:
fishbane,
Obviously, if you post pointless rude comments on a blog you should be questioned about your character and ability to practic law as sanctioned by a state bar. ESPECIALLY if you are reading dirty stories, nifty though they might be, before posting rude pointless comments on the blog of another.
ESPECIALLY if someone in a protected class is offended.
Capiche?
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January 7, 2010, 4:25 pmChris Travers says:
But see my question on obscenity.
Let me give you some graphic examples. I am a big fan of Dorian Cleavenger as an artist. It is VERY CLEAR that some of his paintings might in some communities be held to be obscene and in jurisdictions which have harmful to minors statutes might be even more clearly over the line. But that doesn’t make them any less art, and furthermore, printed collections of his works include not only paintings which might be defined as obscene by idiots with no appreciation for his art but also brilliant conceptual pieces, so the work as a whole (if applied to a book) will almost never be “obscene.
Personally I am not sure that such a line is actually workable.
Similarly I don’t think a line between “niggers shouldn’t be allowed in law school anyway” and “feminists demean unpaid household work” is workable either.
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January 7, 2010, 4:31 pmAlex Bensky says:
Mike Jackson: You and I both know that no one is contemplating using these codes to discipline Muslim law students who make viciously anti-Israel statements, and a feminist who says that “all men are rapists” or some such, which is normal feminist discourse, is hardly likely to find her fitness for the bar in question.
By the way, Catherine MacKinnon did not get tenure at Harvard Law, so she went to my alma mater, Michigan, which fell over itself to give her tenure, her very own journal, and whatever else she wanted. It’s one reason why I manage to ignore the school’s requests for money.
You’d think the legal profession would be the First Amendment’s foremost supporter and protector, but you’d be wrong. I remember when the faculty hosted a party for graduating students at the law school, and this was way back when. The same day some feminists medical students had shown their dislike for certain textbooks by a public burning of them. I recall being both astonished and nonplussed that no one at the party, neither students nor instructors, seemed to find a public book burning to be at all outrageous.
I was dumbfounded then but I am no longer.
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January 7, 2010, 4:45 pmChris Travers says:
I don’t honestly see why that would be outrageous.
Silly, petty, simple-minded, and stupid, sure. But I don’t think it is worthy of moral outrage.
Really, it reminds me of a guy who went to a Norse pagan group I am involved with and decided to brag how he liked to burn the Bible as a tribute to the Gothic invasions of Rome. Most of us there shook our heads and pointed out that the Goths at that time were Arian Christians, and that it was a poor idiot that would burn the Bible as a tribute to heterodox Christians anyway. Needless to say he was not welcome back.
The point I am making here is that a lot of people try to express things without really thinking them through. That in itself isn’t an outrage. It is worthy of laughing, shaking one’s head, and walking on.
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January 7, 2010, 4:58 pmThe Colonel says:
In the interest of civility, please disregard my previous satirical comment.
The market place could easily correct boorish behavior. A licensing body depriving me of my ability to earn a living through my desired profession not because I am technically un qualified, not because I commited some crime (though perhaps a thought crime) but rather because I voiced unpopular opinions found objectionable to a ideologically slanted body is in an entirely different ball park. Are we not far from “Jews should not be allowed to practice law because they support Israel”. “Global Warming deniers are unqualified to practice law”... Where does it stop once it starts?
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January 7, 2010, 4:58 pmjj08 says:
To be a party-pooper — is there any proof of this? Or is the AALS panel merely citing often-wrong conventional wisdom?
I ask because these startling-sounding tidbits are sometimes tossed around without anyone bothering to check to see if they are accurate. Example: in the 1980s homeless advocate Mitch Snyder said there were 2.5 million homeless, and the culprit was Ronald Reagan and his policies.
For over a decade this number kept getting mysteriously upped to three million (by CNN’s Candy Crowley in 1989) to five million (by NBC’s Jackie Nespral in 1993) to nineteen million (by CBS’s Charles Osgood). I believe that Osgood still holds the record.
But organizations from Census Bureau to the General Accounting Office to the Urban Institute put the actual homeless figure at (depending upon the methodology used) 230,000 to 600,000. Moreover, further studies showed that the homeless population was comprised mostly of drug addicts, alcoholics, criminals, and the mentally ill. Snyder and those who came after him had simply made up the figures they used.
Does the AALS intend to offer proof of its rather fantastic claims? The solution of speech codes seems rather draconian if not downright dangerous. Or is this a case of “Verdict first, trial afterward (maybe)”, like in the Duke rape hoax?
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January 7, 2010, 4:59 pmmj says:
“Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities.”
And as we all know, internet stalking is acceptable when directed at white men.
World to End: Women, Minorities Hardest Hit
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January 7, 2010, 5:03 pmRyan Waxx says:
That’s it. Dissolve the Bar and replace it with a government-administered test.
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January 7, 2010, 5:13 pmDave M. says:
“[I]nternet stalking is often directed at women and minorities.” Are there any facts to back this assertion?
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January 7, 2010, 5:14 pmbyomtov says:
In the US, women make up 52% of the population and non-whites make up 33% and the combination is about 64%. So the sentence should read ...
So non-white males are 12% and non-white females are 21%?
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January 7, 2010, 5:15 pmChris Travers says:
Demographics would strongly support it on a general level. After all, women and minorities together make up over 60% of the population. If cyberstalking was NOT often directed at them, that would be notable in itself.
Note that the proposal does not say that women and minorities are hardest hit, nor does it say that cyberstalking disproportionately targets them. It just uses wording which, narrowly read, offers a factual statement which is almost certainly true but which offers nothing in terms of actual support for the thesis.
For example, it strikes me that white men often serve on juries and that our system of 12-man juries originates in Viking-era Danish legal tradition. Further our word “law” is apparently borrowed into Old English from Old Norse. Therefore it seems to me that our trial by jury system is fundamentally unfair to women and minorities.....
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January 7, 2010, 5:16 pmjj08 says:
Then why did not the AALS say something along the lines of “internet stalking is often directed at women and men, minorities and whites” instead of “internet stalking is often directed at women and minorities”? Or “internet stalking knows no racial or gender bounds”? The fact that women and minorities were mentioned — and white males were not — suggests that the AALS does not see harassment directed at the latter as a problem. mj’s comment “World to End: Women, Minorities Hardest Hit” seems to sum up the situation.
I want evidence, not a vague appeal to demographics that may or may not reflect the reality of Internet stalking. If draconian speech codes are to be pushed upon us, I want the pushers to be forced to defend their actions before such demands become “racism” or “sexism” or “homophobia” or whatever the buzzword of the day happens to be.
I am a mathematics instructor at a community college. The wording of the AALS announcement was not careless or accidental. They truly do see this a a problem faced by women and minorities exclusively, and are not interested in Internet stalking if it is directed at someone else.
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January 7, 2010, 5:36 pmmj says:
“For example, it strikes me that white men often serve on juries and that our system of 12-man juries originates in Viking-era Danish legal tradition. Further our word “law” is apparently borrowed into Old English from Old Norse. Therefore it seems to me that our trial by jury system is fundamentally unfair to women and minorities.....”
What bizarre reasoning.
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January 7, 2010, 5:43 pmChris Travers says:
Whoosh.....
Compare to:
Cyberstalking and harassment often affect a group that in aggregate is more than 60% of the population and therefore it presents a real equality question.....
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January 7, 2010, 5:50 pmChris Travers says:
Because it is either an attempt to mislead or an attempt to prevent overstatement.
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January 7, 2010, 5:51 pmDoc Merlin says:
Steve is correct here. This is only a problem because of the legal monopoly that accredited lawyers have. A better solution is to move things to a minimum competency standard and anyone who passes the bar exam can practice law regardless of schooling.
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January 7, 2010, 5:52 pmRowerinVA says:
Oops. You’re right, the combination is 68%, not 62%. My bad. Strengthens the point, actually.
I hope my innumeracy wasn’t so offensive to anyone (perhaps the mathmatics instructor above?) that it will get me banned. Speech codes against innumeracy would certainly doom a lot of people to silence, wouldn’t they?
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January 7, 2010, 6:06 pmDonald Kilmer says:
Stasis is a preferred condition when one is headed toward a cliff of calaminity. But what is to be done toward stepping back from the cliff and turning in the other direction? At the very least one might provide a footnote to any argument against new restrictions, that the long-accepted ones are wrong — and why.
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January 7, 2010, 6:15 pmreadery says:
Is the outrage like the outrage of a person who is raped, or like the outrage of a person forced to be in a bus with a colored person in the front seat?
Perhaps the greatest difficulty in these matters is that when we feel offended, it’s sometimes difficult to tell when the law should attribute our subjective experience of offense to the person doing the conduct and when it should regard our perceptions as the product of our own personality and nature.
I think there is genuinely harassing verbal conduct and that new technology makes it reasonable to expand or analogize to some traditional categories. Swamping people with email is a bit like shouting through a megaphone outside their bedrooms; there is genuinely such a thing as verbal bullying, and the internet and technology permit automating the process in ways that greatly increase the annoyance and harm.
Nonetheless, I agree with Professor Volokh that constitutional verbal bullying and abuse rules, whatever their boundaries should be, need to be viewpoint neutral. They should punish only actual harm to an individual, and not be vehicles to enforce societal orthodoxy and punish unapproved ideas.
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January 7, 2010, 6:27 pmJardinero1 says:
I would take Doc Merlin a step further and ask what is the worst that would happen if we simply let anyone practice law and let the consuming public decide who is competent to represent them?
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January 7, 2010, 6:35 pmGunboat says:
I believe in complete freedom of speech. If we don’t allow people to speak freely, it becomes much harderto figure out which ones are the idiots. Same with the clothing bans. At first I thought it a good idea, but then I realized it would make it harder to tell which people are fanatics.
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January 7, 2010, 8:04 pmloki13 says:
Huh.... I notice that no one is looking into actual statistics, which I would be curious to find out. I know the following from my own experience (which is, of course, anecdotal):
1. I have no knowledge about minorities being cyber-stalked or harrassed in comparison to whites.
2. However, it has been my experience that almost all cyberstalking from a gender perspective is done by men, and all “serious” (IOW where the person was made to fear for their safety) cyberstalking has been done by men. Yes, I rember hearing about a buddy’s ex-girlfriend that was a little loopy with the emails, but this seems to be a male-dominated activity. If you have statistics that say otherwise, I would love to see them (and perhaps learn something).
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January 7, 2010, 9:09 pmChris Travers says:
Yep. Agreed there.
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January 7, 2010, 9:28 pmChris Travers says:
Loki: There is another problem too, defining the behaviors involved.
Cyberstalking can mean any of a number of things, which can range from probably-Constitutionally-protected conduct to felonies, for example.
I have found some statistics which confirm your view, but I am not entirely sure I trust them. Issues of definitions and perceptions seem to run across the studies.
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January 7, 2010, 9:34 pmNI says:
Denying bar membership to people with disfavored opinions is already here, and has been for some time. See here:
http://www.news-sentinel.com/apps/pbcs.dll/article?AID=/20091210/NEWS/912100346
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January 7, 2010, 9:53 pmDissent says:
The statistics on cyberstalking from HaltAbuse.org demonstrate that while women comprise about 70% of self-reported victims of cyberstalking, at least 30% of cyberstalkers are female. There has been a growing trend towards more women as cyberstalkers over the past few years. Far and away, people harassing exes appears to account for the greatest percentage of cases. What this has to do with law students and gender discrimination is... nothing.
Just because women are more likely to report being victims does not make cyberstalking a gender discrimination issue. If one really wants to understand cyberstalking, put the political agendas aside and look at the research that has been done on typologies and the relationship between offender and victim. Also note that approximately half of cyberstalkers have some criminal record.
Not only does the wording of the announcement concern me in terms of the free speech issues, but it also strikes me as a waste of time for anyone who wants to understand cyberstalking if the panelists have a political agenda instead of more scientific curiosity.
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January 7, 2010, 10:37 pmadam says:
If every lawyer and judge (and probably juror) is required to be a leftist, will not conservative defendants or plaintiffs be hopelessly disadvantaged?
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January 8, 2010, 1:38 amLester Dent says:
A few years back I was threatened with academic suspension and a letter to the State Bar from my Law School saying I lacked the moral fitness to be admitted to practice. My offense? I had written a private email to the Dean and Asst. Dean detailing my concerns about a lecturer who admitted to her students that she was unqualified to teach an important class. I noted her self-depricating statements and gave evidence of her lack of experience and problems in the course. As a former educator, I was concerned that the university was shortchanging students. I noted her inexperience and the availability of others on the teaching staff who were much better qualified. The Asst. Dean shared my confidential email with another faculty member (the program supervisor) who gave the email to the instructor. I was notified by the school that I was racist, sexist and ageist, and was ordered to write a letter of apology, attend diversity/sensitivity training, and go before the academic council for probation (I graduated at the top of my class). I had indeed mentioned race in my letter, when I was exploring the possible reasons that this woman had been hired given her self-confessed lack of credentials; I noted that perhaps the university’s preoccupation with diversity had led to appropriate standards not being applied. When I refused to submit to any of their threats, I explained that the legal reasoning applied to my case was faulty — how could my concerns be sexist when the two staff members I had recommended were women (one an open lesbian)? I pointed out that my wife was not of my race, which might undermine their racism charge. I noted that I had actually originally suggested that this instructor be mentored rather than be terminated. I contacted FIRE, but they could only offer encouragement as I attended a private university and they restrict their work to public schools. End of the story was this event cost me a prestigious award upon graduation but nothing else; the school eventually backed down as I pressed the issue of breach of confidentiality by the professor who had sent her the confidential email and demonstrated how foolish their claims against me were. This was just a few years ago, but the song remains the same. And the tune appears to be darkening into a minor key.
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January 8, 2010, 1:43 amJulian says:
@Hans Bader
Perhaps you were critiqued as sexist for lying about a woman’s feminist stances. MacKinnon’s ordinance was a civil rights law, not a criminal one, and she never spoke “anti-male” remarks, only anti-male supremacy remarks. If you don’t know the difference, go back to school and take a Women’s Studies class.
@The Watcher
How do you explain all those feminist writings and books that came out during and after that relationship, Watcher?
Is there a fact-checker in the house, or do people just get to make stuff up here about a well-respected human rights activist, attorney, lecturer, writer, and professor? Are you fellas jealous? Because I’ve never heard of either one of you.
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January 8, 2010, 2:36 amPhineas says:
Eugene, how familiar are you with the whole AutoAdmit scandal?
Your lapse into the classic law-school trope — “Where do you draw the line?” — is cute and has us clutching our pearls over the possibility that future lawyers will feel forced to express themselves to their colleagues in diplomatic ways. But there is a category of speech between the strictly tortious and the sort of sensitive speech you’re worried about, and it’s a category of speech that can and does harm others. It’s the sort of speech that happened in the AutoAdmit scandal.
The AutoAdmit scandal began when some of the fine specimens at that site — behind a veil of anonymity and protected by a site designed to provide that anonymity — posted pictures of women from highly-ranked law schools, without their permission, as part of a hot-or-not ranking contest judged by the members of that site. When a couple of women objected to their images being used in this way, members of the site — many of them law students or prospective law students — decided to post incredibly offensive and false things about these women. This mushroomed into a plain attempt to “googlebomb” the women, with the intention to make the women unemployable in the legal market.
Tort law will stop this sort of thing only if plaintiffs can prove that this kind of behavior caused some kind of damages. As it happens, these women had difficulty pointing to such damages themselves — and this may have been a factor in their settling their lawsuit against their online attackers earlier this year.
But while we may have no problem with tort law failing to prohibit conduct where the conduct fails to harm people tangibly, I really have no problem saying that this kind of behavior is utterly unbecoming that of the fraternity of law. This behavior is in no way comparable to the well-meaning but politically incorrect expression of opinions in the classroom. The AutoAdmit thugs acted with malice and the intent to harm, they caused a good deal of stress to these women, and these women’s lives are irreversibly stained by the whole mess. To suggest that we shouldn’t try to exclude the culprits from practicing law because to do so we’d have to draw some difficult distinction between, “So-and-so ought to be raped and I want to do it” and, “I believe homosexuality is wrong” is, I submit, lazy and irresponsible.
Put plainly, law students shouldn’t be doing things like manipulating google results in order to harm other students they don’t like. Just like they shouldn’t participate in other honor-code violating speech, like revealing exam details to people who haven’t taken the exam yet, “fluffing” the resumes they send law firms, or misrepresenting their criminal backgrounds on law school applications. Do you have a problem defining those categories of speech, as well?
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January 8, 2010, 9:20 amYankev says:
Perhaps as a vehicle for expression?
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January 8, 2010, 9:25 amYankev says:
Can you give an example of SCOTUS, or for that matter a US district court or a US court of appeal, upholding a conviction for expressing allegedly (or even actual) anti-Semitic statements?
B’nai Brith, being a private, non-governmental agency, cannot “police” laws or enforce them, and I confess to having trouble seeing why Bnai Brith is relevant to this discussion.
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January 8, 2010, 9:35 amYankev says:
Here in south central Ohio, we’ve been letting real estate agents practice residential real estate law for decades. (We’re tough on trust mills, though.)
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January 8, 2010, 9:42 amKen Arromdee says:
To you, doing such things “isn’t an outrage”, yet it was obviously enough of an outrage for there to be consequences to the guy (not being welcomed back). The feminists who burned books obviously were welcomed back.
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January 8, 2010, 10:11 amlgm says:
Julian,
Maybe MacKinnon was a borderline tenure decision at Harvard. But given her subsequent nutty writing, Harvard clearly made the right call.
The same can be said of the Bork decision. The case against his confirmation to be on the Supreme Court was not airtight. But given his subsequent writing, we all should be grateful that he was Borked.
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January 8, 2010, 11:12 amChris Travers says:
Not an outrage. Just, along with other behavior, indicative of a rather unstable individual seeking too much attention for our liking. Had he had a better rationale besides being hopelessly and wilfully confused, we probably would have not been too concerned about it.
Outrage is wasted in that case. Jokes are not.
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January 8, 2010, 12:02 pmgeokstr says:
To the left, this is a feature, not a bug.
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January 8, 2010, 12:17 pmgeokstr says:
Oh, you mean like the many, many “journalists” and leftwing bloggers who make up bizarre sh*t about Palin, then the rest of the left picks it up and virals it all over the internet, and then the “mainstream” media latches on, all with the obviously plain intention of making her “unemployable” in the political market.
I assume you would be just as aghast at that, too, non? Non? Gosh, what a coincidence.
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January 8, 2010, 12:28 pmNI says:
“To suggest that we shouldn’t try to exclude the culprits from practicing law because to do so we’d have to draw some difficult distinction between, “So-and-so ought to be raped and I want to do it” and, “I believe homosexuality is wrong” is, I submit, lazy and irresponsible.”
True enough. The worry for us civil libertarians isn’t that such distinctions can’t be drawn; it’s that they won’t be drawn. Any time government bureaucrats are given a little bit of power (and character and fitness committees are, among other things, government bureaucrats), the tendency is to increase power and toss common sense.
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January 8, 2010, 12:30 pmNI says:
“Oh, you mean like the many, many “journalists” and leftwing bloggers who make up bizarre sh*t about Palin,”
Most of those journalists and left wing bloggers aren’t seeking admission to the bar.
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January 8, 2010, 12:32 pmJulian says:
@Igm
From dictionary.com:
nutty (adjective)
full of flavor or zest; lively; stimulating; meaty: He offered several rich, nutty ideas on the subject.
In the sense that Catharine A. MacKinnon, more than any other living legal scholar/attorney/professor/writer/activist, has done more exceptional work and has been extremely influential, creating more human rights for women inside and outside the male supremacist U.S.
Yes, that’s right. “Nutty”: not meek or mild; having a notable impact; giving greater life.
Ah. Well. MacKinnon is to Bork what Walter Cronkite is to Don Imus. One (that would be MacKinnon, in case you’re not following me here) is extremely influential and helpful to humanity in any number of ways, such as by having integrity, dignity, and by being willing, within a profession–U.S. television broadcasting, to speak out against an atrocity far too many privileged people wish to deny. The other (that would be Bork), working within the same profession, represents and speaks in embarrassing ways for those rape-denying oppressors.
At what school were you taught your sexism and misogyny–or should I just say “Igmed”?
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January 8, 2010, 12:37 pmLester Dent says:
@Julian -
What “rights” has Ms. MacKinnon “created?” Now, I understand that you may not accept the dead white male concept of rights coming from God, as written somewhere (can’t recall right off, some dead document or another). But what specific rights has she “created”? How has she enforced recognition of these rights? Why didn’t I get the memo?
And when you make the comparison with Judge Bork above, are you referring to Cronkite as radical leftist versus Imus as libertarian? That may well be a valid comparison, although I do not believe Judge Bork is a libertarian.
Personally, I found Judge Bork to be pompous and ill-mannered the few times we spoke, but I do have some appreciation of his legal experience and perspectives.
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January 8, 2010, 1:03 pmChris Travers says:
Well, let’s look at this one more carefully.
The first statement may, depending on context, rise to the level of a true threat. It may not (I wouldn’t categorically suggest merely making the statement would be sufficient to prevent practising law—context matters).
If it does rise to the level of a true threat (and it seems to me that if it was intended to terrorize the object of the threat, it would be), then it is not protected speech under the Constitution, and may well be criminal in nature. I don’t see why existing rules wouldn’t cover that situation in appropriate contexts.
However, let’s look at something that might be on the other side of that. “So-and-so is a rapists dream-victim. Someday someone ought to rape her. Unfortunately I am not the sort to do it.” I am not sure where that falls. What do you think?
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January 8, 2010, 2:12 pmChris Travers says:
I personally think that is an extremely sexist statement. It presupposes that a campaign of harsh comments is sufficient to permanently damage women. By that logic, how long before we basically make husbands the legal guardians of their wives again?
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January 8, 2010, 2:38 pmJulian says:
@Lester Dent
I’ll bypass some of your commentary on Bork the Dork. Below in this comment/response, please see a summary of the career of C. A. MacKinnon.
And what have YOU done to stop the exploitation, subordination, and domination of women by men, globally? Hmmmm? Do you care about sexual slavery and rape of women and children by men? The epidemic of rape of American Indian women by U.S. white men? U.S. white men traveling to Phnom Penh, among other cities, so they can stick their penises in children’s mouths? The connections between the rape of women inside the pornography industry and the sexual harassment of working women outside and inside the pornography industry?
What area of law do you practice? Read on...
Catharine A. MacKinnon, the Elizabeth A. Long Professor of Law and long-term James Barr Ames Visiting Professor of Law at Harvard Law School, specializes in sex equality issues under international and constitutional law. She pioneered the legal claim for sexual harassment and, with Andrea Dworkin, created ordinances recognizing pornography as a civil rights violation. Representing Bosnian women survivors of Serbian genocidal sexual atrocities, Professor MacKinnon won with co-counsel a damage award of $745 million in August 2000 in Kadic v. Karadzic, which first recognized rape as an act of genocide. The Supreme Court of Canada largely accepted her approaches to equality, pornography, and hate speech. In addition to scholarly works that include Sex Equality (2001), Toward a Feminist Theory of the State (1989), Only Words (1993), Women’s Lives, Men’s Laws (2005), and Are Women Human? (2006), she has published widely in journals and the popular press. Her work has been documented to be among the most widely-cited writings on law in the English language. Professor MacKinnon holds a B.A. from Smith College, a J.D. from Yale Law School, and a Ph.D. in political science from Yale. She has taught at Yale, Chicago, Harvard, Osgoode Hall, Stanford, Basel, and Columbia, among others, and spent a year at the Institute for Advanced Study at Stanford. Professor MacKinnon practices and consults nationally and internationally, and works with Equality Now, an non-governmental organization promoting international sex equality rights for women, and the Coalition for Trafficking in Women (CATW). She was recently appointed Special Gender Adviser to the Prosecutor of the International Criminal Court.
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January 8, 2010, 2:51 pmJulian says:
@Lester Dent
Oh, and where do you teach? And what have you written?
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January 8, 2010, 2:53 pmChris Travers says:
I am opposed to this in principle, btw. Especially now that a third of porn consumers are women. All you are saying is she is eroding our free speech rights and creating a pseudo-right to be free of offence.
On the other hand trying to stop human trafficking is good work and she should be commended for her efforts there.
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January 8, 2010, 3:01 pmLester Dent says:
@Julian -
Sorry? “Where do you teach and what have you written?” I’ve seen you post this frequently — as a new commenter here may I ask the same of you? Evidently the only valid points are those of people in the academy and those who publish, so you undoubtely have a prestegious chair at an Ivy and publish peer-reviewed work continuously, yes? That is such a specious argument that I hesitate to reply. But I have been teaching and publishing since 1976 under my real name. I write opinion under this name because, with a practice in the SF Bay Area, I find I keep clients happier if I do not mix politics with business. You may Google to answer your question (hint: I did not write the Doc Savage pulp novels).
You still seem to not grasp the concept of “right” or the fact that a “right” cannot be created but only recognized. The confusion over what are “rights” and what are “desires”, “values”, “aspirations”, “imagined slights”, “financial opportunities to be exploited”, “irrelevent appeals to authority”, etc., seems common today among those who seek to impose the tyranny of their prejudices and political correctness on other, “wrong-thinking” people.
As for myself, I was active in the Civil Rights movement in the 1960s and women’s rights in the 1970s (de rigueur in Berkeley in the ‘70s). I suspect that, unlike you, I have a different perspective on what was originally sought by these movements and what the industries based upon these concepts (including a large swath on nonsensical faculty positions and curricula) have devolved into. While many good-willed individuals are caught up in this movement today, high-profile actors are often hucksters, in my opinion and experience.
But YMMV.
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January 8, 2010, 3:44 pmLester Dent says:
@Julian -
BTW, I was personally responsible for ending the “epidemic of rape of American Indian women by U.S. white men”, so that should give me some street cred with you. Solidarity!
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January 8, 2010, 3:52 pmShelbyC says:
lefty academics are funny.
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January 8, 2010, 4:47 pmJulian says:
@Chris Travers
And do you enjoy your entitlement to access images of incested girls and raped women, 24/7? Because you know who ends up in pornography disproportionately, I hope. And you know pornographers are pimps with cameras, yes?
And if one third of women now do also, does that make society better, more just, more free–for whom? If one third of African Americans are in favor of slavery, does that means society is healthier, freer? It is, disproportionately, women and girls of color who are bought and sold and are photographed and passed around as sexxx things and as pornography. Is that “good”? You’re clear distinction between pornography and sexual trafficking and slavery is not manifest in the actual world of human suffering and oppression. These are profoundly enmeshed forms of exploitation and harm.
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January 8, 2010, 5:04 pmJulian says:
@Lester Dent,
You’re saying that epidemic is over, of rape against American Indian women by white men? I don’t think white men who are still raping Indigenous women got the memo. And I sincerely thank you for any work you have done to alleviate this form of white male supremacist atrocity, to the extent that you have.
I despise the academy, for many reasons. Primarily for its lack of commitment to teaching people how to fight sexist and racist oppression. Generally speaking, I see the academy as part of the problem and activists such as MacKinnon are rare in the academy.
Thanks for letting me know you weren’t that author!! lol I figured that, but I’m glad you clarified.
I can appreciate your wish to keep your practice and other work separate. I don’t have a practice other than challenging white heterosexual male supremacy, and the atrocities of genocidal, ecocidal Western civilisation, so I don’t have the same concerns. But I support you doing your life that way.
What you write above is so loaded, in an unowned and intellectually dishonest way, with Western white male supremacist concepts. I recommend you read Yurugu, by Marimba Ani, before engaging with you further on the whole matter of “Rights”.
I’m sorry that fighting for women’s rights has ever been seen by anyone as de rigueur. Surely ending the rape and other methods of social and sexual subordination of half of humanity ought not be something that falls into and out of fashion. The rape of women by men, as a form of class terrorism, is something that men I know either commit, calling it something else; don’t commit and don’t do squat to end; or men don’t rape and fight to end rape. That latter population of the three is a fraction of a fraction of of the total male population. Why is that?
At least MacKinnon cares to work towards ending rape. I wish everyone writing here did, as much.
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January 8, 2010, 5:23 pmLester Dent says:
@Julian -
Sorry, as tempting as your posts are (after a quick review of rape statistics and offender/victim stats, along with pertinent subcultural analysis, your premise appears unsubstantiated) I do not believe that this is the proper thread to discuss such issues. If you wish to remain on-topic I will gladly respond, but don’t feel it appropriate to bring in unrelated issues (a stretch to go from speech restrictions in law schools to the rapacious nature of caucasians). Even the claim “but you should be concerned” is not germaine IMHO — we should be concerned about many things, but not in this thread. Feed the world!
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January 8, 2010, 6:07 pmChris Travers says:
Be careful about tarring with too broad a brush. Yes, human trafficking is a problem that needs to be dealt with. That doesn’t mean that pornography itself should be any less protected under the First Amendment. Whether or not I or my wife enjoys porn has very little to do with the overall issue (and indeed I will neither confirm nor deny either).
In fact, as someone who has had to give advice to people about issues and perils of internet porn, I have often told people that the evidence points to a substantial subset of porn sites which are somehow affiliated with some sort of organized crime (not just human trafficking, but illegal drug sales, smuggling, spam, and probably more).
However, we don’t ban shouting “kill the niggers... we intend to do our part” at a KKK march simply because of the fact that some people somewhere actually engage in racially motivated murder (see Brandenburg v. Ohio). Merely because pornography is sometimes associated with other crimes does not make it immune to first amendment protections.
Too bad you aren’t there to push for obscenity prosecutions for distributing movies like “Silip” (admittedly quite a disturbing movie, and quite improperly marketed as erotica, but that is beside the point— my wife did make me get rid of the movie but due to the very grizzly murder scene, not the sex scenes or even the rape scene. At the same time, the murder scene was a brilliant addition to the move which added a great deal of symmetry— If you are interested in very provocative movies that will keep you thinking for weeks, I highly recommend it whether or not you are bothered by the widespread nudity, violence, rape, sex, etc).
The initial question is whether pornography displayed, say in the workplace, is a civil rights violation. The overall theory is that it causes a hostile workplace environment for women sufficient to make it functionally discriminatory against female employees as a class. I am saying if a third of porn customers ARE women, then it is hard to justify that argument. Since women are the fastest growing demographic among porn consumption, I expect that difficulty to grow.
I recognize you hate porn, but trampling on everyone’s Constitutional first amendment rights is not the way to fight it.
(I also don’t think it should be actionable to call a black customer of one’s business a “nigger” or to tolerate other customers doing so. Unfortunately our first amendment liberties seem to be greatly degraded in the public square....)
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January 8, 2010, 7:08 pmShelbyC says:
Not just the public square... Here you’re talking about one one’s own property inside a private business.
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January 8, 2010, 7:18 pmChris Travers says:
See, though, this is where we get to the root of this issue.
Certain individuals almost always want to use censorship to accomplish some sort of political goal. I will admit that being served with equal dignity by public businesses regardless of race is a noble goal, but I am not sure that censorship is the way to do it. Similarly, ending human trafficking is a noble goal but saying everyone must crack down on all pornography (especially with phony arguments to support such) to do it poses similar (and indeed arguably more severe) problems.
So now we have panellists suggesting that “outrageous” conduct as a law student might be censored by threatening to interfere with bar membership. It’s the same thing. And it doesn’t work. Because it doesn’t work, it will be a stepping stone to a more severe policy.
Let me put it this way: you can’t legislate that everyone is just going to get along and be respectful to eachother.
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January 8, 2010, 7:29 pmAnonymous says:
Achtung! Vee haff vays of making you politically correct!
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January 10, 2010, 12:28 pm