Category: First Amendment

University of California professor issues vile anti-Semitic tweets, university is investigating

January 3, 2021 • 9:15 am

Abbas Ghassemi is a “teaching professor” of chemical engineering at the relatively new campus of The University of California at Merced.  He’s also a nasty piece of work: the most blatant form of anti-Semite who, between June and December, tweeted the most shopworn stereotypes about Jews on his 18-month-old Twitter account.  His activities, now under investigation—though I contend they shouldn’t be—are recounted in the Times of Israel (below; click on screenshot), the Jewish News of Northern California (JNNC) and The San Francisco Chronicle (paywalled).

The skinny:

A teaching professor in the UC Merced School of Engineering is the owner of a Twitter account that had a pattern of antisemitic posts, J. [JNNC] has discovered. The content was described by the Anti-Defamation League as “repulsive” and promoting “antisemitic tropes.”

On June 14, Abbas Ghassemi tweeted “… reality bites!!!!!!” along with a photo of a “Zionist brain” with labels such as “frontal money lobe,” “Holocaust memory centre” and “world domination lobe.” That same image can be found on the website “Jew World Order,” which peddles antisemitic conspiracy theories.

On Dec. 8, in response to Joe Biden’s election win, Ghassemi retweeted another Twitter user’s post and commented, “Surprise, surprise!! The entire system in America is controlled by [the] Zionist. Change of president is just a surface polish, change of veneer. Same trash different pile!”

Many of Ghassemi’s tweets used “IsraHell” in place of “Israel.”

On Dec. 13, he retweeted something and added the comment, “the Zionists and IsraHell interest have embedded themselves in every component of the American system, media, banking, policy, commerce … just a veneer of serving US interest and population — everyone pretends that is the case.”

Ghassemi tweeted similar posts about Zionists and Israel controlling certain components of the United States another eight times between October and December.

He deleted his account after JNNC made inquiries, though a few of his tweets got captured. A particularly invidious one is below:

The whole thing. This is about as stereotyped as you can get.

Yes, the stuff is absolutely repugnant. In response, the Chancellor and Provost of his university wrote an open letter to the community decrying the hatred of the account (Ghassemi wasn’t named) and saying that an investigation has been started. An excerpt from the letter:

The opinions presented in this Twitter account do not represent UC Merced or the University of California. They were abhorrent and repugnant to us and to many of our colleagues and neighbors; they were harmful to our university, our students, and our years of work to build an inclusive and welcoming community.

The Twitter account, now deleted, was called to our attention by the media. We have now confirmed the account was in fact associated with a member of our faculty. The professor’s dean subsequently emailed faculty and staff in the school on Dec. 23 calling the tweets “reprehensible” and affirming that they in no way represent UC Merced. We have called upon the dean and department chair to work with the Office of the Vice Provost for Academic Personnel to conduct an inquiry into potential violations of our standards, the UC Faculty Code of Conduct or other policies of the university, to determine what consequences are appropriate.

We have heard from some students who have raised concerns about this faculty member’s online statements about their heritage. These concerns will be addressed through the Offices of the Vice Chancellor for Student Affairs and Dean of Students.

We are also directing the Office of the Associate Chancellor for Equity, Diversity and Inclusion to develop programming for the spring semester that addresses free speech, hate speech and anti-Semitism in academia and promotes ways to challenge discriminatory insinuations when and wherever they emerge within the university community.

Ghassemi’s tweets almost certainly violated Twitter’s “hate speech” rules, and his account would have been deleted. He’s also been criticized by the Anti-Defamation league. All that is legal. What may not be legal, and to my mind violates Ghassemi’s First Amendment rights (remember, Merced is a public university) is to conduct a university investigation. Unless there’s evidence that Ghassemi broke other university rules—and I can’t imagine what rules would prohibit him from speaking as a private citizen on social media—he has the right to say whatever he wants in public. Twitter may shut him down, but he could bawl his anti-Semitic drivel on the state capitol steps in Sacramento, for all I care, and he’d have the right to do that.

As for the putative “programming” that the University will develop that “challenges discriminatory insinuations,” well, that comes perilously close to violating Ghassemi’s First Amendment right as well. (He’s apparently retained a lawyer.)

Should the University have decried his speech as “abhorrent and repugnant”? I don’t think so. If Ghassemi pulled the same stunt at the University of Chicago, the response from the administration would almost surely be, “Professors have the right to say whatever they want in the public sphere.” Period. The University should not be in the business of decrying “hate speech” publicly, as that’s a slippery slope that could lead to their decrying debatable things as well, like criticisms of the Black Lives Matter movement. As our Kalven Report dictates, the University of Chicago should make public pronouncements on politics only when they deal with issues that immediately deal with the running of the University.

Look, I’m a secular Jew and have a soft spot for the Jewish people (though not the religion). I’m always accused of being a Zionist, and I suppose that’s true as I support the state of Israel existing as it is (though not necessarily all the settlements). But as far as anti-Semitic “hate speech” goes, bring it on. We can fight back with counter-speech, as as long as the haters don’t try to incite immediate and predictable violence, what they have to say is allowed. As is the speech of Professor Ghassemi, who should not be punished by the University.  The students can (and should) avoid the knucklehead, or contest his speech in every appropriate venue. But he shouldn’t be punished officially.

What interests me about this is the lack of coverage of Ghassemi’s activities. Jewish and Israeli papers have covered him, as have the local papers. But you won’t find it mentioned in liberal media like the New York Times, Washington Post, or of course the HuffPost. Anti-semitism is not something they usually report on, for the Left is imbued with it, though they call it “anti-Zionism.” (This is why Bari Weiss had to leave the NYT.) But imagine the coverage if Ghassemi posted anti-Black or anti-Hispanic racism as nasty as that which heaped on the Jews. It would be a national scandal!

In the end, Anti-Semitism is one thing, free speech another. If the latter permits the former, then so be it. We’re in no danger of gas chambers in America, and one of the best defenses against anti-Semitism is to allow its purveyors to out themselves, and then fight back—with words.

Here’s a poll, which I’ll try just to roll out our new polling plug-in:

Should Abbas Ghassemi be investigated (with the possibility of punishment) for his anti-Semitic tweets?

View Results

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An interview with ACLU great Ira Glasser

December 22, 2020 • 1:15 pm

Ira Glasser was head of the American Civil Liberties Union (ACLU) from 1978 until 2001, and his name is familiar to those who keep an eye on civil liberties. As Wikipedia notes:

The ACLU website credits Glasser with transforming the American Civil Liberties Union from a ‘mom and pop’-style operation concentrated mainly in a few large cities to a nationwide civil liberties powerhouse.” Indeed, at the end of Glasser’s presidency the ACLU maintained staffed offices in all fifty states, the District of Columbia, and Puerto Rico; when he became director in 1978, only about half of the states had staffed offices. Glasser raised the ACLU’s annual income from $4 million in 1978 to $45 million in 1999.  Although the ACLU had protected civil liberties generally through litigation, Glasser expanded the focus of the ACLU’s activities through lobbying and public education programs.

There’s a new movie about Glasser that I haven’t seen yet (but will), the 2020 “Mighty Ira“, 100 minutes long. And, presumably because of the movie, Reason.com‘s Nick Gillespie just interviewed Glasser. At the site below (click on screenshot), you can hear a 71-minute podcast with Glasser (I haven’t listened yet), or read a shorter transcript of his remarks. I’ll mention what I think are the most relevant and interesting things he has to say in the transcript, and give a few excerpts.

Glasser dwells at length at what happened in Skokie in 1977, where everyone thinks the ACLU defended the American Nazi Party’s right to march through Skokie, Illinois, and that the march took place. In fact, it didn’t, because the ACLU won another case—in Chicago—that prohibited the city (and thus Illinois) from forcing demonstrating groups to post a $250,000 bond as security against damage. No company would cover such a bond, so that effectively banned public demonstrations. The ACLU took that to court and won. They also won the right of the Nazis to march in Skokie (Skokie is not Chicago, but its own city), and, given the choice, the Nazis decided to march in Marquette Park, Chicago. It’s useful to learn what really happened, as Glasser was in charge when this was happening, and it’s an iconic but misreported case of free speech.

Glasser also describes how the ACLU defended the Klan’s right to march in Mississippi. When I was younger, the organization would, if they had the lawyers and dosh, defend anybody’s speech that was in danger of being suppressed by the government, no matter how odious the speech and the speaker seemed. And that’s what the First Amendment is for.

As I reported in 2018, Reason.com published a leaked memo from the ACLU suggesting that they might be backing off of their traditional mission of defending everyone’s free speech in favor of “social justice” speech. That is, the ACLU was changing course, deciding that some speech might not be worth protecting, or at least not be worth defending by their organization. When asked about this, Glasser gave an answer that didn’t really thrill me (Gillespie’s questions to Glasser are in bold):

In 2018, a leaked ACLU memo came out where the group seemed to be walking away from the idea of viewpoint neutrality when it came to protecting speech. The ACLU now advises its affiliates to consider the content of speech and whether it advances the group’s goals before deciding whether to defend the right to speak. How do you feel about that?

I’m 20 years gone from steering this ship. I don’t really know a lot more about what’s going on than you do. That memo did in fact introduce a content-based consideration to whether they would take a free speech case, enough so that it made me wonder, “If Skokie happened again, would the ACLU take it?” It’s not politically outrageous during times like these for the ACLU to want to become more of a political organization than a civil liberties organization. That’s not surprising, and there’s nothing evil about it. An organization has a perfect right to change its agenda or mission, to say, “The times require us to be something different than what we were.” The ACLU has taken a few steps toward doing that, I think, but they’ve denied it.

There are a lot of progressive political groups out there. I’m glad to have more of them, because that’s my politics too. But there’s only one ACLU. It doesn’t matter on whose behalf the immediate client is. What matters is you have to stop the government from gaining the power to decide. It’s taken 100 years for the ACLU to develop from the 30 or 40 people that started it in 1920 to the powerhouse of civil liberties that it is today. If the ACLU isn’t there for speech, who will be?

I don’t quite get why—hard-line free-speech advocate that he is—Glasser thinks it’s okay that the times could create a useful change in the ACLU’s mission, but a change that dilutes its historical defense of free speech. It’s a bit of a confusing answer, because I can also read in it that Glasser doesn’t think it’s okay (look at his last sentence). Perhaps because he may still have strong ties to the ACLU, Glasser doesn’t want to criticize it so publicly.

Glasser is a social-justice advocate of the right type: he believes in free speech but also in fighting for the oppressed, for racial segregation was why he got into civil liberties in the first place. He reiterates what I see as the right reasons for defending everyone’s speech, and then talks about the intersection (pardon that word) between social justice and civil liberties.

A few words about the enemies of free speech:

It wasn’t until my 30s that I began to understand free speech, that the real antagonist of speech is power. The only important question about a speech restriction is not who is being restricted but who gets to decide who is being restricted—if it’s going to be decided by Joe McCarthy, Richard Nixon, Rudy Giuliani, [President Donald] Trump, or [Attorney General] William Barr, most social justice advocates are going to be on the short end of that decision. I used to say to black students in the ’90s who wanted to have speech codes on college campuses that if [such codes] had been in effect in the ’60s, Malcolm X or Eldridge Cleaver would have been their most frequent victim, not David Duke.

. . .Is civility overrated?

To a point. I’ve seen vigorous advocacy demonized and suppressed on the grounds that it wasn’t civil. I once had somebody at the ACLU propose a new policy for us that would oppose speech that demeaned and insulted people. I got up at that conference and said, “Well, every time I open my mouth, I’m looking to demean or insult somebody because of their views, and I’m about to do it again.” I proceeded to attack that, because in the hands of malevolent power, a statute like that would suppress speech in the name of civility.

And yes, that’s what colleges are doing: prioritizing civility (often described as “harm”) above speech.

I found this interesting:

[Glasser]: Next to slavery and the homicidal, genocidal destruction of American Indians, the worst civil liberties violation that occurred in this country en masse was the incarceration of Japanese-American citizens during World War II. You know which president signed that executive order? Franklin Delano Roosevelt, who was a god in my parents’ house because he had saved them from ruin financially. But for me, the antagonist of civil liberties and free speech is not this or that party; it’s power, whoever holds it.

That, of course, is one of the reasons that demonstrating groups and “social justice warriors” are always about power as well as justice, for if you have power you can keep people from saying things you think shouldn’t be heard.

Free speech and social justice. I found this long exchange quite bracing, not because of the student diversity, which is itself good, but because of Glasser’s response. But to be sure, the students are the future and Glasser is the past. So now I’m depressed again!

I grew up in an era where your broad view of the value of free speech was culturally dominant. What has happened to change that?

I went to one of the half-dozen best law schools in the country a year or two ago to speak. And it was a gratifying sight to me, because the audience was a rainbow. There were as many women as men. There were people of every skin color and every ethnicity. It was the kind of thing that when I was at the ACLU 20, 30, 40 years ago was impossible. It was the kind of thing we dreamed about. It was the kind of thing we fought for. So I’m looking at this audience and I am feeling wonderful about it. And then after the panel discussion, person after person got up, including some of the younger professors, to assert that their goals of social justice for blacks, for women, for minorities of all kinds were incompatible with free speech and that free speech was an antagonist.

As I said, when I came to the ACLU, my major passion was social justice, particularly racial justice. But my experience was that free speech wasn’t an antagonist. It was an ally. It was a critical ally. I said this to the audience, and I was astonished to learn that most of them were astonished to hear it—I mean, these were very educated, bright young people, and they didn’t seem to know this history—I told them that there is no social justice movement in America that has ever not needed the First Amendment to initiate its movement for justice, to sustain its movement for justice, to help its movement survive.

Martin Luther King Jr. knew it. Margaret Sanger knew it. [The labor leader] Joe Hill knew it. I can think of no better explication of it than the late, sainted John Lewis, who said that without free speech and the right to dissent, the civil rights movement would have been a bird without wings. And that’s historically and politically true without exception. For people who today claim to be passionate about social justice to establish free speech as an enemy is suicidal.

Amen! That three-paragraph answer should be distributed to every campus and taught as part of the “free speech” seminar I’d like to see accompanying the usual indoctrination given to college students in their first days on campus.

UPDATE: I’m told by reader Ben that the talk Glasser describes above was given at the University of Chicago Law School. Here’s Glasser talking to Glenn Greenwald about the talk and his movie.

h/t: Eli

FIRE’s annual spotlight on college speech codes

December 9, 2020 • 9:15 am

The Foundation for Individual Rights in Education (FIRE) has a particularly useful new report that gives the annual “free speech” ratings of American colleges and universities (478 of them). There are three ratings; going from worst to best they are red light, yellow light, and green light. You can access the full report here or click on the screenshot below. The ratings are explained below.

As someone who lives on a campus regarded as the bellwether of free speech among American colleges, I found the college ratings particularly useful (spoiler: Chicago again gets an overall green light), but because many college students brought up at these places will take their places among the American elite, it’s useful to know what regimes they experience. Especially useful were the sections explaining what free speech really is (FIRE uses the First Amendment as a guideline), and the various ways colleges try to either ignore it or get around it. If you want to know why hate speech does not violate the First Amendment, or what legally constitutes sexual harassment, you’ll be edified by the discussion. I’ve put FIRE’s summary video at the bottom.

Click on the screenshot for the full report:

Both public (106) and private (372) schools were thoroughly evaluated in several areas for how “free” they allowed speech to be; each school was given one of three colors (a fourth was given rarely) in each of several areas (handbooks, “free speech zones”, etc.), and then assigned an overall color for freedom of speech. Here are the categories from worst to best; the “blue light” category below was given to only eight schools, most of them either religious (Yeshiva University, Brigham Young University) or military (West Point, Annapolis):

Red Light

A “red light” institution has at least one policy that both clearly and substantially restricts freedom of speech. A “clear” restriction is one that unambiguously infringes on what is or should be protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied.

When a university restricts access to its speech-related policies by requiring a login and password, it denies prospective students and their parents the ability to weigh this crucial information. At FIRE, we consider this action by a university to be deceptive and serious enough that it alone warrants a “red light” rating.

Yellow Light

A “yellow light” institution is one whose policies restrict a more limited amount of protected expression or, by virtue of their vague wording, could too easily be used to restrict protected expression. For example, a ban on “posters containing references to alcohol or drugs” violates the right to free speech because it unambiguously restricts speech on the basis of content and viewpoint, but its scope is very limited.

Alternatively, a policy banning “verbal abuse” could be applied to prohibit a substantial amount of protected speech, but is not a clear violation because “abuse” might refer to unprotected speech, such as threats of violence or harassment as defined in the common law. In other words, the extent of the threat to free speech depends on how such a policy is applied.

Green Light

If a college or university’s policies do not seriously imperil speech, that college or university receives a “green light.” A green light does not indicate that a school actively supports free expression. It simply means that FIRE is not currently aware of any serious threats to students’ free speech rights in the policies on that campus.

Warning – Does Not Promise Free Speech

FIRE believes that free speech is not only a moral imperative, but also an essential element of a college education. However, private universities are just that—private associations—and as such, they possess their own right to free association, which allows them to prioritize other values above the right to free speech if they wish to do so. Therefore, when a private university clearly and consistently states that it holds a certain set of values above a commitment to freedom of speech, FIRE warns prospective students and faculty members of this fact.

If you want to look up a particular college that has been rated, just go here. You can search by school name, state, or ranking, and the entries it breaks down all the sub-areas for each school.  The report linked above lists only the overall ratings of every college.

I won’t summarize the results in detail, but will give just a few highlights (for me). First, the overall ratings (all colleges) are improving: red-light schools have dropped strongly in the last nine years, mostly replaced with yellow-light rankings. But the greenies are going up slowly but surely, and the rise is statistically significant.

Here’s the breakdown among all colleges. Since nearly all schools profess to promote free speech (but most don’t foster it in practice), the 12% of green-light colleges means that we have a long way to go. But, as shown above, the arc is bending in the right direction.

Since The University of Chicago is widely seen as the model for free speech at a university (we get a “green” in every category), many schools have adopted the “Chicago Principles” of free expression, which you can read here. Two years ago it was 55 schools who aped us; now it’s 78. That’s good news, except that some of those colleges get RED ratings on other grounds: schools like Princeton, Johns Hopkins, and Georgetown University. Go by the light colors, not what the college professes.

Here’s FIRE’s statement about the Chicago Model:

Seventy-six university administrations or faculty bodies have now adopted policy statements in support of free speech modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”), released in January 2015. (Since this year’s report was written, two more institutions have adopted a version of the Chicago Statement, bringing the total to 78.)

Two more points. Some of the restrictive “red-light” colleges were eminent ones, which surprised me. Here’s a list of the surprising red schools:

  • Georgetown University
  • Harvard University
  • Johns Hopkins University
  • Middlebury College
  • The Evergreen State College (“Where speech goes to die” is my motto for TESC)
  • Northwestern University
  • Portland State University (notorious persecutor of “Grievance Studies” critics)
  • Princeton University
  • University of Texas at Austin

Finally, there’s a long and very absorbing section about the different ways colleges abrogate free speech with their use of “speech codes”, restrictions on “incitement”, “threats and intimidation”, “bullying”, “harassment” (often misconstrued by colleges), “hate speech”, the creation of “free speech zones” that shunt speech off to the hinterlands of schools, the institution of “bias response teams” to intimidate those who practice genuine free speech, and demands for “respect and civility”.

And there’s a list of ways that colleges also try to obviate the new Title IX regulations created by DeVos’s regime. As I’ve said, the institution of the new regulations, which allow a lot more fairness in adjudicating claims of sexual misconduct, is one of the few good things to come out of the Trump administration. FIRE also thinks the new regulations are an improvement, but also notes that some schools have created a “dual-track approach”, which nominally adheres to the new standards but also also incorporates a parallel and broader definition of “sexual harassment” than specified by Title IX, and so can still punish students who engage in speech that conforms to the First Amendment’s definition of “free.”

All in all, while colleges appear to be getting more woke, at least the formal restrictions on speech seem to be improving. But, as FIRE notes, they rate schools only on policy, not on what they actually do, which they can’t keep track of. I’m thus a bit wary. And I’m worried that Chicago will lose its “green light” rating in view of some recently allowed chilling of speech, violations of the Kalven report that have been allowed to stand. Since our school touts its rating as a selling point to students and their parents, losing our green light rating would be a serious matter.

Here’s a short video from FIRE summarizing the report.

Supreme Court comes down on side of churches in New York’s pandemic restrictions on congregation size

November 26, 2020 • 10:00 am

In a new ruling, the U.S. Supreme Court overturned New York Governor Andrew Cuomo’s limitation of congregation sizes in churches during the pandemic.  The ruling was split 5-4, with new Justice Amy Coney Barrett voting with the conservative majority—affirming the side of the Roman Catholic Church, which brought the suit—while Chief Justice Roberts voted with the liberals. (Had RBG been alive, the vote would have been 5-4 the other way.)  Beside the unsigned majority opinion, there are separate concurring opinions by Justices Gorsuch and Kavanaugh, while there are dissenting opinions by Roberts, Breyer, Kagan, and Sotomayor in various combinations.

While the judgment affirmed that Cuomo’s order violated the First-Amendment guarantee of freedom of religion, one shouldn’t assume that the decision was purely one of religious conservatism, for this was a tough call.  You can read the opinion below (the unsigned majority take is short), or read the New York Times article about the decision (click on both screenshots below).

The Times’s article:

This ruling overturns two lower-court decisions affirming Cuomo’s decision to force churches to have 10 or fewer congregants during the “red-zone” phase of the pandemic.  One of the reasons the majority overturned this restriction (which has since been rescinded!) is that the numerical restriction was not imposed on businesses other than churches. Hence, one could construe that this violates the First Amendments “free exercise” provision by discriminating against churches.

From the majority decision:

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for Determining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026. The disparate treatment is even more striking in an orange zone.  While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.

Irreparable harm. There can be no question that the challenged restrictions, if enforced, will cause irreparable harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion). If only 10 people are admitted to each service, the great majority of those who wish to attend Masson Sunday or services in a synagogue on Shabbat will be barred. And while those who are shut out may in some instances be able to watch services on television, such remote viewing is not the same as personal attendance. Catholics who watch a Mass at home cannot receive communion, and there are important religious traditions in the Orthodox Jewish faith that require personal attendance. App. to Application in No. 20A90, at 26–27.

But against this, one could argue, as did Justice Sotomayor in her dissent, that businesses that didn’t have government-specified limits are materially different, in terms of viral spread, from church congregations, especially where congregants are singing loudly. From her dissent:

But JUSTICE GORSUCH does not even try to square his examples with the conditions medical experts tell us facilitate the spread of COVID–19: large groups of people gathering, speaking, and singing in close proximity indoors for extended periods of time.

As I noted, the case appears moot because the numerical limits obtaining at the time of the lawsuit have since been lifted (this was emphasized in the dissents). But the majority opinion took that into account as well, saying that Cuomo’s decision could be reversed, and rather than re-litigate the issue, I presume the court wanted to render an opinion that would be in place should that reversal take place:

The dissenting opinions argue that we should withhold relief because the relevant circumstances have now changed. After the applicants asked this Court for relief, the Governor reclassified the areas in question from orange to yellow, and this change means that the applicants may hold services at 50% of their maximum occupancy. The dissents would deny relief at this time but allow the Diocese and Agudath Israel to renew their requests if this recentreclassification is reversed.

There is no justification for that proposed course of action. It is clear that this matter is not moot. See Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (2007); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000). And injunctive relief is still called for because the applicants remain under a constant threat that the area in question will be reclassified as red or orange. See, e.g., Susan

B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014). The Governor regularly changes the classification of particular areas without prior notice.3 If that occurs again, the reclassification will almost certainly bar individuals in the affected area from attending services before judicial relief can be obtained.

I suppose Left-wing sites might couch this as an unwarranted, pro-faith opinion supported by the usual suspects, who now include Barrett. And that may be the case, but it’s not a cut-and-dried issue. Here are my thoughts:

1.) It is supremely important to uphold the Free Exercise clause, just as it’s important to uphold the entire First Amendment, which includes freedom of speech as well as of worship.

2.) Nevertheless, when public safety is compromised by free exercise of religion, the former trumps the latter, as it has historically. Practicing one’s faith does not give you the right to endanger those who are not of your faith.  This gives courts the power to restrict religious practice if it, for example, is likely to spread coronavirus.

3.) But one cannot discriminate against churches in this respect, imposing sanctions on them that aren’t imposed on similar enterprises like businesses.

4.) HOWEVER, and this is the most important bit for me, is a church with a congregation limit of 10 equivalent to a business like Wal-Mart in which more than ten people are present at once—in a much larger space? I don’t think so, particularly when church congregants sing and pray without masks, a particularly dangerous way of spreading the virus via respiratory droplets.  I’m not sure whether the court’s decision, holding equivalence such as this, is justifiable, and Sotomayor makes that point. This is in fact a public health rather than a legal decision, and is not really within the court’s competence.

5.) As for the restrictions having changed, rendering the original lawsuit moot, I do agree with the majority that given the to-and-fro of restrictions during the pandemic, a judgment was still warranted. Whether this was the right one, I am not sure. But it’s better to have some opinion in place rather than having the matter re-litigated should restrictions once again be imposed.

Perhaps there are lawyers in the crowd here who want to render an opinion, and I have to say that I haven’t scrutinized the entire set of opinions minutely. But this decision doesn’t bother me as much, as, say, ones that pose more serious dangers, including those that restrict abortion or dismantle the Affordable Care Act. But those will be coming, for the court is now solidly conservative—even if Justice Roberts is mellowing in his old age.

 

Is the “Goldwater rule” a good ethical guide for therapists, and does it violate Americans’ freedom of speech?

November 23, 2020 • 10:45 am

The 25th Amendment of the Constitution provides a way for the Vice President to replace the President if the latter becomes unable to fulfill the duties of his office. I won’t give the whole Amendment, but the relevant parts for this piece concern Trump’s erratic behavior, which many psychiatrists have diagnosed as a mental illness serious enough to have him removed from office.

Section 1

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

. . .

Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. . .

Now Section 4 is a bit unclear as to exactly who will provide the written declaration of the President’s unfitness, though it seems that a majority of the Cabinet, acting with the Vice President, could do the deed. However, a number of psychologists and psychiatrists have, over the last few years of the Trump Presidency, decided and declared that the man is palpably unfit for office—indeed, according to their remote diagnoses, he’s mentally ill—and should be given the boot forthwith.

I agree that Donald Trump is mentally ill, but I’m not a professional, and thus am not bound by the strictures of professional associations to avoid diagnosing someone you haven’t personally examined. And those strictures exist most prominently in the American Psychiatric Association’s (APA’s) “Goldwater rule“, created after a number of psychiatrists pronounced Barry Goldwater unfit for office in 1964. Here’s the rule from the APA’s “Principles of Medical Ethics,” and this rule is still in force:

On occasion psychiatrists are asked for an opinion about an individual who is in the light of public attention or who has disclosed information about himself/herself through public media. In such circumstances, a psychiatrist may share with the public his or her expertise about psychiatric issues in general. However, it is unethical for a psychiatrist to offer a professional opinion unless he or she has conducted an examination and has been granted proper authorization for such a statement

There doesn’t seem to be a penalty for psychiatrists who flout this rule, however, as psychiatrists who have diagnosed Trump as ill, or even lobbied Congress to proceed with the Trump Dump, have suffered no penalties.

The many writings and activities of the therapeutic community—psychiatrists, their subset of psychoanalysts, as well as psychologists and medical doctors—to depose the President are detailed in Wikipedia as well as in the op-ed below that just appeared in USA Today. The author, Bandy X. Lee, is a forensic psychiatrist at Yale who’s spent a lot of her time trying to promote Trump’s removal on mental-health grounds. I wrote about her activities, and those of other therapists, in October of this year. (She also edited a book:  “The Dangerous Case of Donald Trump: 37 Psychiatrists and Mental Health Experts Assess a President). But now that all of the professionals have failed to get Trump removed—and, anyway, the voters have done what the shrinks couldn’t—she’s back, this time arguing, too late for this case, that the Goldwater Rule violates the First-Amendment right of psychiatrists to speak up, and also (her usual line) that psychiatrists have a duty to speak up because of the danger that Trump poses to America.

Click on the screenshot to read:

 

 

Perhaps Dr. Lee is now concerned about future deranged Presidents, and maybe that’s why this appeared when Trump is already on the way out. As for my own opinion, well, yes, I think he’s a narcissist and a sociopath or psychopath, but I am not a professional therapist. If I were, I would not give my professional opinion, for I happen to believe that the Goldwater Rule is correct. Just as a medical doctor won’t give an opinion about what illness a public figure has if that hasn’t been revealed, so a psychiatrist (they’re all M.D.s) should keep mum about mental illness. There is of course a difference, as mental illness could render a President dangerous or ineffectual. But so could many diseases, like stroke or dementia. (Woodrow Wilson was rendered unfit to run the country by a stroke.)

That’s why the APA restated and supported the Goldwater Rule in 2018, a ruling that was even supported by the New York Times:

The psychiatrists say they have a duty to warn the public about what they see as a serious threat to the nation. That’s commendable, but they should consider how their comments will be taken by the vast majority of Americans, particularly in a highly politically polarized time. The language of mental health and illness is widely used yet poorly understood, and it comes loaded with unwarranted assumptions and harmful stereotypes. There’s a good reason the profession established an ethical guideline in 1973, known as the Goldwater Rule, that prohibits psychiatrists from offering professional judgment on public figures they have not personally examined.

The paper broached the correct solution: (impeachment didn’t work):

The best solution is the simplest: Vote, and organize others to register and to vote. If you believe Donald Trump represents a danger to the country and the world, you can take action to rein in his power. In November, you can help elect members of Congress who will fight Mr. Trump’s most dangerous behaviors. If that fails, there’s always 2020.

And, YES WE DID.  Lee herself seems a bit obsessive in publishing the same old same old at this late date, especially when there’s really no penalty for psychiatrists violating the Goldwater Rule. In her closing, she also says that the APA’s rule about keeping mum is a breach of the First Amendment:

We need to get back to basics. Painter stated at our conference: “the Goldwater rule … is a violation of your First Amendment rights, and a violation of your duty to your country and to human civilization.” It is a basic understanding that to remain silent against a critical medical need is a violation of our professional “responsibility to society,” as outlined in the first paragraph of the preamble of our ethics code. The APA should no longer mislead the public and the media into believing that its guild rule of restricting speech on public figures, which no other mental health association has and is not admissible on any state licensing board, is universal. The truly universal Declaration of Geneva says that we must prevent harm and injustice, especially when they are coming from a destructive government.

Lee is dead wrong about “other associations not having similar regulations,” for the American Psychological Association (another APA), has very similar rule:

Of course a psychiatrist or psychologist can give their opinion without government penalties, for such penalties do constitute censorship and it’s a violation of the First Amendment for the government to sanction anyone for saying that Trump is a loon. But the APA’s penalty (were it enforced) would be a sanction by a professional organization, so the First Amendment doesn’t come into play.

Is it a duty to America for therapists to say that Trump is mentally ill and unfit for office? Well, given what the NYT said, I doubt that such warnings would have any effect. In fact, they didn’t, because thousands of Democratic non-therapists have offered the same opinion, and none of it had any effect. Somehow Dr. Lee thinks that she and her colleagues have the unique medical power to pry Trump out of the Oval Office. They don’t—not with Pence and Trump’s cabinet being who they are. And the speech of Dr. Lee and her colleagues is not restricted. They had their say, and even wrote a book. It did no good, and that’s what you’d expect.

Were I a Democratic, anti-Trump psychiatrist or psychologist, I’d keep my gob shut about diagnoses and just say that Trump is endangering America—without tendering a professional opinion about his mental health. You can palpably point out how the man has damaged America without speculation about what in his brain made him do it.

h/t: Randy

“We must add new guardrails”: Biden transition team official wrote op-ed asking for hate speech laws

November 16, 2020 • 11:45 am

Two tweets disturbed me this morning, both calling attention to Richard Stengel‘s anti-free speech column in the Washington Post last October. Stengel is a writer and government official who was editor of Time magazine and also worked as Undersecretary of State during the Obama administration. Now he’s on the Biden transition team for the U.S. Agency for Global Media, though I’m not sure exactly what that job involves.

(The “ACLU retreats from free expression” piece mentioned in the tweet below was written by Wendy Kaminer in the Wall Street Journal in June, 2018, and access isn’t free.  I’ve been saying that same thing for a while though, and I’ll try to get my hands on it. It is true that the ACLU is taking some alarmingly regressive steps.)

At any rate, a bit over a year ago Stengel—and remember, he’s on the media part of Biden’s transition team—wrote this op-ed. Click on the screenshot to read it.

Stengel’s contention is that the First Amendment is outmoded, especially in an age of social media, for there is no guarantee that “truth will drive out lies” now. But when was there ever a guarantee? Here’s what he says:

It is important to remember that our First Amendment doesn’t just protect the good guys; our foremost liberty also protects any bad actors who hide behind it to weaken our society. In the weeks leading up to the 2016 election, Russia’s Internet Research Agency planted false stories hoping they would go viral. They did. Russian agents assumed fake identities, promulgated false narratives and spread lies on Twitter and Facebook, all protected by the First Amendment.

the intellectual underpinning of the First Amendment was engineered for a simpler era. The amendment rests on the notion that the truth will win out in what Supreme Court Justice William O. Douglas called “the marketplace of ideas.”

This “marketplace” model has a long history going back to 17th-century English intellectual John Milton, but in all that time, no one ever quite explained how good ideas drive out bad ones, how truth triumphs over falsehood.

Milton, an early opponent of censorship, said truth would prevail in a “free and open encounter.” A century later, the framers believed that this marketplace was necessary for people to make informed choices in a democracy. Somehow, magically, truth would emerge. The presumption has always been that the marketplace would offer a level playing field. But in the age of social media, that landscape is neither level nor fair.

Of course there’s no guarantee that the truth will drive out lies: Trump’s falsehoods have been widely believed, but of course the media has exposed them as lies. It’s the free press that allows this exposure, but it can’t guarantee that everyone is going for the “truth” side. If that were the case, there would be no religions! And there’s nothing all that different about social media: there has always been media in which people have told untruths. It’s just now that media is available to everyone, who can put up their merest thoughts in an instant.

Still, the clash of opinion on things like abortion, the Israel/Palestine question, affirmative action, gun control and the like are the only ways to give both sides an airing and to propound their best arguments. The rest is up to the people. If you don’t have this clash of ideas because one side claims that it KNOWS THE TRUTH and will censor the other side, then we’re truly doomed. Allowing someone to determine the truth is the surest way to guarantee that the truth becomes one person’s opinion. And this is the whole problem with Stengel’s attack on the First Amendment and push for “hate speech”—which he sees as speech that people find insulting to their race, religion, ethnicity, and sexual orientation:

Since World War II, many nations have passed laws to curb the incitement of racial and religious hatred. These laws started out as protections against the kinds of anti-Semitic bigotry that gave rise to the Holocaust. We call them hate speech laws, but there’s no agreed-upon definition of what hate speech actually is. In general, hate speech is speech that attacks and insults people on the basis of race, religion, ethnic origin and sexual orientation.

I think it’s time to consider these statutes. The modern standard of dangerous speech comes from Brandenburg v. Ohio (1969) and holds that speech that directly incites “imminent lawless action” or is likely to do so can be restricted. Domestic terrorists such as Dylann Roof and Omar Mateen and the El Paso shooter were consumers of hate speech. Speech doesn’t pull the trigger, but does anyone seriously doubt that such hateful speech creates a climate where such acts are more likely?

It could, but it also outs those who are bigots and allows us to see their arguments. If arguments for bigotry win, then we have no chance as a democracy, anyway. And there are already laws, as Stengel says, against speech that incites violence—if the violence is imminent and predictable. If the violence could result much later from someone’s speech, then people like Richard Dawkins could be (and have been) accused of pulling the trigger, for Dawkins is an anti-theist who attacks religion in general, including Islam. If some crazed Muslim-hater reads Dawkins or Hitchens and goes on a killing spree, does that make them responsible, and should their works have been censored because they offend believers? No, because we can’t predict or fend off everything that could result from speech. We might as well ban Evangelical Christianity because the Bible, and their preachings, have led to the killing of abortion doctors and the demonization of homosexuals.

Stengel:

Let the debate begin. Hate speech has a less violent, but nearly as damaging, impact in another way: It diminishes tolerance. It enables discrimination. Isn’t that, by definition, speech that undermines the values that the First Amendment was designed to protect: fairness, due process, equality before the law? Why shouldn’t the states experiment with their own version of hate speech statutes to penalize speech that deliberately insults people based on religion, race, ethnicity and sexual orientation?

All speech is not equal. And where truth cannot drive out lies, we must add new guardrails. I’m all for protecting “thought that we hate,” but not speech that incites hate. It undermines the very values of a fair marketplace of ideas that the First Amendment is designed to protect.

Yes, Stengel is a Pecksniff who wants hate speech laws, but is curiously silent about who will make them? Who will be The Decider? We all know the problems with that, and they are pretty much insuperable. For every Biden official who disallows criticism of Black Lives Matter and Islam, there will be a later Trumpy official who criminalizes speech that liberals favor. The best solution is to allow everyone to say their piece, with a reasonable few exceptions that the courts have carved out as outweighing free speech (false advertising, defamation, harassment of individuals, and so on).

You know what my worries are: that Stengel will influence and also reflect a general censorious wokeness on the part of the new Biden administration. Granted, this editorial was written over a year ago, but I think it’s fair to ask Stengel if he still stands by it. If he does, then we should keep a weather eye on his behavior—and that of the Biden administration’s actions about speech.

ACLU staff attorney calls for censorship of Abigail Shrier’s book on gender dysphoria

November 14, 2020 • 12:15 pm

What’s happened to the American Civil Liberties Union (ACLU) is a crying shame. And I say this even though I volunteered for them, have been a member on and off, and was the recipient of their largesse when, for no fee, they represented me and four other defendants in a class-action suit about illegal drafting in New York. I went to the ACLU, and their lawyers took the case, arguing successfully in Federal court that we were drafted illegally as conscientious objectors. This freed a couple of thousand men from forced civilian service. I’ve always been deeply grateful for the ACLU’s help.

Although the ACLU is still doing a lot of good legal work defending genuine civil liberties, they’re also getting woke in a way that, to me, deeply compromises their integrity. I’ve done a fair number of posts calling out their dubious stands over the last few years; these include posts bearing these titles (click to see them):

The ACLU backs off defending free speech in favor of promoting social justice

New improved standards proposed for adjudicating sexual misconduct in college; ACLU opposes them for “inappropriately favoring the accused”

The ACLU defends the right of biological men to compete in women’s sports

ACLU continues defending the right of medically untreated men who claim they’re women to compete in women’s sports

ACLU joins lawsuit allowing biological males to compete in women’s sports

What’s especially worrying is the ACLU’s backing off on free speech (the subject of today’s short post); its pushback against one good thing that the Trump administration did: making the Title IX proceedings adjudicating sexual misconduct fairer; and the organization’s big push to defend the “right” of medically untreated biological males to participate in women’s sports. Now of course the ACLU should be defending transgender rights, for every person, regardless of gender status, should enjoy equal rights under the law, and discrimination on the basis of gender is largely illegal. And they’ve done a good job of that (see below).

But the ACLU has also gone a bit off the rails on the transgender issue, arguing that even biological men who haven’t undergone hormone therapy should be allowed to compete in sports against biological women.  As I reported a while back, the ACLU defended two Connecticut people who were born male, identify as female, and, without any hormone therapy or surgery, decided to compete against biological women in track and field. In fact they did compete, and did very well, for Connecticut law mandates that self-identification as a woman is all you need to compete in women’s sports. The ACLU buys into the argument that you’re a woman simply if you claim to be a woman.

But the organization shouldn’t be defending something so manifestly unfair. They’re also making a big push to defend transgender athletes without reservation, despite the notoriously slippery issues involved in defining “men” and “women” for transgender athletes. The standards for competing, as in the Olympics, are subject to much dispute. The ACLU’s view is apparently that a claim itself is all that’s needed to deem you a man or a woman.

And now, to my great sorrow, an ACLU staff lawyer and champion of transgender rights, Chase Strangio, has come out full bore in favor of censorship.  I’m referring to his demanding, as shown in the tweets below, censorship of a book we discussed yesterday: Abigail Shrier’s treatise on gender dysphoria in adolescent and teenage girls, Irreversible Damage.

Although Strangio’s tweets are “protected”, I assume that the two below, reproduced by “Wokal Distance”, are accurate. In the second, he blatantly advocates censorship of Irreversible Damage, “stopping the circulation of the book and these ideas.” How else can that be interpreted as censorship? And “stopping ideas” should not be the business of the ACLU, which has always defended the First Amendment. They should be defending the right of Shrier to publish her book and circulate her ideas, not fight against them. This shows how low the ACLU, at least in the person of Strangio, has fallen. An organization dedicated to defending civil liberties is calling for their suspension when they offend people.

Now Strangio has done great stuff in areas that do comport with the ACLU’s mission. Wikipedia describes two cases:

In October 2019, Strangio was one of the lawyers representing Aimee Stephens, a trans woman who was fired from her job at a funeral home, in the U.S. Supreme Court case R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission.

Strangio and his team won that case, with the conservative Supreme Court ruling 6-3 that Title VII of the Civil Rights Act of 1964 protected transgender people from employment discrimination. (The plaintiff was a transgender woman fired from a funeral home.)

Strangio was also on the team that won a similar landmark case.

In June 2020, the U.S. Supreme Court decided 6–3 in favor of Gerald Bostock, a gay man terminated from his job due to discrimination on the basis of sexual orientation, in Bostock v. Clayton County. Strangio was one of the lawyers on the case. The case ruled that it is illegal to discriminate in employment on the basis of transgender identity or sexual orientation.

But Stangio’s tweet above isn’t even a case of his deciding between two conflicting rights. There is a right to promulgate your ideas; there is no “right” for the transgender community to be protected from criticism about gender dysphoria and medical intervention in adolescent girls.

Strangio is favoring censorship, pure and simple, and a watering down of First Amendment rights: “stopping circulation of this book.” Is Shrier’s argument so injurious to transgender people, and to society in general, that it cannot be read or heard? I don’t think so.

Remember that the ACLU defended the rights of the American Nazi Party to march through Skokie, Illinois: a Jewish community. Surely that’s more hurtful than Shrier’s book, for the Nazis call for the deportation and death of Jews, while Shrier is merely telling society to examine the cause of an epidemic of gender dyphoria in young girls.  The “unwavering commitment to principle” that the ACLU itself touts in the Skokie case is apparently not shared by Strangio.

Like the Southern Poverty Law Center, the ACLU is damaging its mission by buying into wokeness, and nobody is reining in either of these once-great organizations.  It’s a huge shame.