Category: First Amendment

Southern states try to circumvent the First Amendment by teaching the Bible in public schools

May 10, 2019 • 9:15 am

I’ve always been wary of teaching “religious studies” below the college level, and for two reasons. First, as in the case discussed below, it’s too often an excuse to proselytize religion in public schools—a violation of the First Amendment. Second, even if you’re doing it to give children a sense of history and culture, there will be huge disputes about what history and culture should be taught. Ideally, you’d want to acquaint kids with not only Christianity and Judaism, but also the religions of the world, now amply represented in the U.S.: Islam, Hinduism, Buddhism, and so on. But who decides what will be taught? If Islam, can you fairly represent Shia and Sunni? And of course there are the Mormons (with their completely bogus founding) as well as about 30,000 sects of Christianity, not to mention Catholicism and the Eastern Orthodox church. How do you give kids an overview of Western and Eastern faiths without stinting some of them.

It’s just a mess, and I’d prefer to leave it to the college level.

One example of the trouble at issue is the new legislative push for bills allowing Bible studies in public schools as part of the regular curriculum. One has already passed in Kentucky, and, as this Washington Post article reports (click on screenshot below for e-reader version), laws are pending in 10 states. Georgia and Arkansas have already passed such bills, which are awaiting the signature of the governor to become law. All this is the result of Project Blitz: a right-wing, evangelical Christian initiative which lobbies for these laws as a way to get Jesus into the classroom. Given who’s pushing this, there’s not much doubt that “general education about religion” is not the goal.

The Supreme Court, as the article notes, has said that it’s okay to teach Bible classes in public schools so long as it’s “part of a secular program of education.” But this isn’t what’s happening, at least in Kentucky where the program is underway. Instead, teachers are imparting moral lessons from the Old and New Testaments, which constitutes Biblical exegesis and theology, and they’re also using it to diss evolution—a way around the legal prohibition of teaching creationism in public schools.  The ACLU has informed the states engaged in this legislation that they need to provide oversight of the classes, but no lawsuits appear to be pending.

A few bits of the article tells you what’s happening. Here’s the main anecdotal story used in the piece: Todd Steenbergen’s class at Barren County High School in Glasgow, Kentucky. Here he is teaching it:

Students describe Steenbergen’s Bible class as a chance to do something they enjoy during the school day — Cole Wilson, who took the class in a previous semester, likened reading the Bible in school to getting the chance to shoot hoops during gym class.

“I like studying the Bible anyway,” agreed Mattie Coomer, who also took the class. “As a Christian, I believe the Bible, it’s a living book — if God is a living God, he’s going to speak through his word every time you open up the Bible. It’s more important than any other book I could be reading.”

Coomer said she just finished reading the Bible, from Genesis through Revelation, outside of school, and then started all over again. But that’s not what happens in the classroom. In Steenbergen’s Bible class, the students hardly read the Bible at all.

There is no classroom set of Bibles for every student, no encouragement to download a Bible app on their smartphones. He never assigns chapters or verses to read. Instead, he said, he summarizes biblical stories for them and focuses class time on highlighting connections between the Bible and modern life.

During one class this spring, he spent most of the hour-and-a-half period on a game in which students guessed which theme from the Gospel of Matthew or which blessing from the Beatitudes that Steenbergen meant to connect to when he played clips from country songs and Disney movies.

His consistent message throughout the game was that students should draw moral lessons from the Gospels.

“‘Pure in spirit’ is a good word to equate to humility, humble,” he said. “We see humility, a wise thing that could be applicable for us today. How many of us would like to be more humble about something?” And later: “Was there a time you helped provide some cheer for someone and it made you aware how good it was? . . . We can use wisdom and apply it in new ways today and help people be comforted.”

The drawing of moral lessons from such classes is clearly a violation of the First Amendment, because of course those lessons are always positive, and this is a promotion of Christianity over other faiths. Do you think they teach the genocide approved by Yahweh, or the stoning of the guy who collected sticks on the Sabbath, or Lot’s offer to the mob to let them rape his daughters? I doubt it. This is teaching “civilization and ethics” using the Bible as a framework.

But to me as a scientist, the worst part is how they’re using these laws in Kentucky to do an end-run around the prohibition of teaching creationism (a religious and not a scientific view):

Maggie Dowdy said she picked this course because she thought it would be easy. After all, she already knew the Bible from church.

When the class started with the very first Bible story — the story of creation — she was glad she had chosen it. Here at last was the story of human origins that she believed in — not the facts of evolution that she had been taught in her high school science class.

“When I started learning about [evolution], I thought: ‘That’s not true. Here’s what I believe,’ ” Dowdy said. “I just kind of push it aside now. I know what I believe in. It’s just something the teachers have to teach us, but, no, I believe in creation.”

Other students echoed her. “We’ve always in science learned that perspective, evolution and the big bang,” Morgan Guess said. “This is the class that allows us the other perspective.”

“Allows us the other perspective”? Well, yes, they can take whatever perspective she wants, but it’s a dereliction of duty for professor teaching this stuff to pretend that it’s real, rather than saying that science doesn’t support it. And note how the class is serving to buttress the children’s Christian faith: a sort of Confirmation Bias 101 class.

Lest you get depressed at this point, and you should be given the obdurate religiosity of the American South (there’s also a bill in North Dakota), there are still a few freethinkers. Here’s one:

Only Katie King, 17, expressed doubts about the Bible in a discussion one morning. “I took this class to see for myself if this is what I wanted to follow and believe,” she told classmates. “My parents are so religious. They push it a lot.”

“The Bible per se, some things I’m just like — I don’t know,” said King, who acknowledged that she is often an outlier among her peers because she supports abortion rights and likes reading New York Times articles about politics. “Like one thing — I don’t get that people who are good people, genuinely good, nice people, have good intentions, but because they don’t believe in God, they’re doomed to hell. I can’t accept that. I cannot accept that.”

I hope Katie leaves for college soon, as she’ll be demonized by her peers in Kentucky for saying something like this in the Washington Post. Imagine—she admits she supports abortion choice and reads the New York Times! Satan is licking his chops.

h/t: Bruce

Williams College finally allows a pro-Israel student organization to exist, but without official approval

May 4, 2019 • 12:30 pm

On April 25 I reported that the Williams College student council, by a vote of 13-8, rejected the bid of Williams Initiative for Israel (WIFI), a pro-Israel student organization, to join the many student organizations already approved. These include the pro-Palestinian organization Students for Justice In Palestine (SJP). Based on its actions and anti-Zionist stand, I consider SJP a “hate group”, but that doesn’t mean it should be banned. What it means is that if SJP is approved, so should WIFI. Favoring one group over the other is viewpoint discrimination, which is banned by the First Amendment. (Williams, of course, is a private school that doesn’t have to follow those free-speech guidelines, but it pretends to favor free speech.)

The reason WIFI was banned, of course, is because the College Council at Williams is woke, and demonstrated that by deep-sixing a pro-Israeli organization. Further, the Council vote was anonymous and the proceedings not subject to the normal live-streaming. The reason for the deviation from these customary procedures, of course, is that the students were cowards who didn’t want their discussion or votes to be public. This has the unfortunate side effect of depriving students, who are represented by the College Council, to listen to their representatives and see how they voted.

This violation of protocol, and manifestly unequal treatment of groups, wasn’t even opposed by the Williams Record, the hyper-woke student organ of outrage newspaper. But it did publish a letter from three students objecting to the deplatforming of WIFI, which noted that that group was rejected on purely political grounds:

During the CC meeting, no Council member present contested WIFI’s compliance with school rules and regulations. Therefore, it is apparent that WIFI was denied official status on purely political grounds, as CC members and guests fought to silence us and effectively turned the meeting into a referendum on Israeli-Palestinian politics.

A counter letter from 11 other students opposed to WIFI makes it clear this really was an issue of free speech and viewpoint discrimination:

Free speech on campus requires some level of basic respect for our interlocutors. We can disagree, argue passionately, even yell; but we cannot, in good conscious [sic], fund student groups that refuse to acknowledge the basic humanity of those on the opposing side of the issue. We cannot support groups that, in response to Palestinian students sharing deeply personal accounts of the pain they have suffered during the occupation, trivialize the violence that this campus was supposed to provide them an escape from. We can have a healthy debate around Israel-Palestine on this campus without erasing the voices of Palestinian students, erroneously redefining colonialism or concealing acts of genocide.

Here again we see the lip service paid to free speech, but then the disclaimer that WIFI wasn’t practicing it because it was “erasing the voices of Palestinian students” and so on. (Exactly how does its existence “erase the voices” of the vociferous students SJP? These eleven students are fascists, and are one reason why Williams, brimming with students like this (as well as many like-minded faculty) is reluctant to sign on to the Chicago Principles of free speech.

In view of this double standard of the students, the Academic Engagement Network, an anti-BDS organization, wrote a polite letter to Williams President Maud Mandel on May 3, a letter you can see here. It informed her of what she should have already known: that in approving an anti-Israel organization but disapproving a pro-Israeli organization, the Williams College Council was violating First Amendment principles. An excerpt:

If Williams College was a public university, the CC’s decision against WIFI would be a violation of the First Amendment. Under Healy v. James, 408 U.S. 169 (1972), ideology is not lawful grounds for denying recognition to a student club. Williams College is a private institution but we note that it has voluntarily decided to promote robust open inquiry and to protect freedom of expression. Indeed, several weeks ago you sent a campus-wide email in which you reaffirmed these principles. You stated that the school’s goal “shouldn’t be to avoid disagreement or dissent, but to develop ways of engaging in it without losing respect for each other as people.”

The policies of Williams College aim to implement these laudable principles. According to its Code of Conduct, the school is “committed to being a community in which all ranges of opinion and belief can be expressed and debated…The College seeks to assure the right of all to express themselves in words and actions, so long as they can do so without infringing upon the rights of others or violating standards of good conduct or public law.”

While not a public university bound by the First Amendment, Williams College is nonetheless obligated to adhere to its own stated principles and policies. Consequently, we urge you to take immediate action to reverse the decision of the CC and to give WIFI the RSO recognition that it deserves.

And on that very same day, President Mandel finally took “immediate action”, criticizing the students for ditching WIFI as an RSO in a notice on the President’s Office website (click on screenshot):

Among other things, Mandel said this about the denial of RSO (“Registered Student Organization”) status for WIFI:
. . . The transcript of the debate and vote indicate that the decision was made on political grounds.

In doing so, Council departed from its own process for reviewing student groups, which at no point identifies a proposed group’s politics as a criterion for review. The decision also seems to be in tension with CC bylaws, especially Article V, Section 3: “Prohibition Against Discrimination in Student Organizations.”

We’ve always expected the Council to follow its own processes and bylaws. I’m disappointed that that didn’t happen in this instance. College leaders have communicated to the organizers of Williams Initiative for Israel that the club can continue to exist and operate without being a CC-approved RSO. This is not a special exception. It’s an option that has been open to any student group operating within the college’s code of conduct. Even without CC approval, WIFI or any other non-CC organization can still access most services available to student groups, including use of college spaces for meetings and events. I see the communication of this fact to WIFI as a basic matter of fairness and people’s right to express diverse views. Differences over such views are legitimate grounds for debate, but not for exercising the power to approve or reject a student group.

Well, good for President Mandel for taking this stand. My approval, however, is a bit tempered by two considerations. First, it’s possible, though I don’t know for certain, that Mandel issued this statement in reaction to the letter she got from the Academic Engagement Network on the same day. She could have issued this statement ten days earlier, so it’s a bit of a coincidence. And if her hand was indeed forced, then this paints her as a reactive rather than a proactive president: a follower rather than a leader, and someone who acts only when her hand is forced.

Second, note that she kindly allows the WIFI group to exist without its being a Registered Student Organization, a status that may come with other perks like a financial allotment.  Mandel may have the power to turn WIFI into such an organization, and if she can, then she should. She thus imperiously allows WIFI to exist in the hinterlands as a student organization, but not an approved one. Meanwhile, Students for Justice in Palestine continues to enjoy the privileges of being an approved RSO.

This is only one installment of the ongoing social and political crisis at Williams that is turning the school into The Evergreen State College of the East. There will be more to come: wait until you see how the President manages to argue why racially segregated housing isn’t really racially segregated housing.

Nadine Strossen’s new book on hate speech, why such speech should not be censored or banned, and its relevance to recent campus events

April 26, 2019 • 9:30 am

I’ve just finished Nadine Strossen‘s 2018 book, HATE: Why We Should Resist It with Free Speech, Not Censorship, one of 16 volumes in the series “Inalienable Rights,” edited by University of Chicago constitutional law professor Geoffrey Stone.  Click on the screenshot to go to the book’s Amazon site:

Strossen was president of the American Civil Liberties Union (ACLU) from 1991 to 2008—their first woman president. She’s now a professor at New York Law School. She’s always been a civil-rights lawyer, and this is her third book on the topic. Given her expertise and position at the ACLU, she was an excellent person to write this book.

I recommend it to all of you who want to read a succinct (186 page) argument for why hate speech should be neither outlawed nor censored by the government. (Strossen also argues—and I agree—that although censorship of hate speech is prohibited in government institutions, including public universities, private institutions should also follow public ones as far as possible.) She goes into the legal background for allowing hate speech, citing numerous court decisions and also mentioning what forms of speech can be barred by law (speech that incites imminent violence and cannot be countered by non-censorious means, defamation, false advertising, personal and persistent harassment of individuals in the workplace, etc.)

She then makes the argument for allowing hate speech, with each point in a separate chapter:

  • Hate speech violates fundamental principles of free speech and equality
  • Hate speech is irreparably vague; no hate speech ban or law can be applied without subjective interpretation that bans some speech that we really want to allow
  • There is no evidence that hate speech causes the harms that it’s said to (personal trauma, victimization, etc.)
  • There is evidence that listening to hate speech and developing a “tough skin” to withstand it and argue against it is psychologically healthier than reacting like a victim and being offended
  • Hate speech laws have been ineffective: they don’t reduce hate speech or bigotry in countries where they’ve been enacted
  • There are better ways to counteract hate speech than censoring it or making rules against it (counterspeech, organized “opposition events,” etc.)

In other words, this is a defense of the First Amendment, and takes into account and answers most of the arguments people make against “hate speech”. While the first half of the book is largely repetitive and a bit tedious, the second half, which gives examples instead of purely philosophical argument, is worth the price of the book alone. I recommend it for all free-speech advocates—or for those who want to ban “hate speech”

I want to emphasize two of Strossen’s arguments that are relevant to recent events on campuses. The first is her argument that the best way to eliminate bigotry is to urge people from different “tribes” to get to know one another. This is the basis on which I oppose recent calls for “affinity housing” (e.g., segregated housing based on ethnicity, sexuality, and gender, as endorsed by many students at Williams College and actually practiced at several universities). If colleges are truly in favor of inclusion and diversity, and opposed to bigotry, then they should never allow segregatedof housing, which reinforces tribalism and prevents students from mingling. Here’s what Strossen says about the salutary effects of getting to know members of other “tribes” (p. 178):

Social science studies have confirmed what everyday experience suggests: that the most effective way to decrease people’s negative attitudes toward members of any societal group is to give them an opportunity to get to know one another. As noted above, the “inter-group contact theory” was first formulated by Harvard professor Gordon Allport in his trailblazing 1954 book The Nature of Prejudice. Allport posited that interaction is especially constructive in setting such as school, work, and community groups, where people collaborate on common endeavors. Allport’s findings have been corroborated by a vast social science literature documenting that inter-group contact plays a vital role in reducing prejudice and promoting a more tolerant, integrated, and harmonious society.  The evidence demonstrates that contact overcomes prejudice and forges positive relationships among people from many different groups, including racial and ethnic groups, the elderly, LGBT persons, mentally ill people, persons with disabilities, and AIDS victims. A 1993 study of heterosexuals’ attitudes toward gay men, for example, found that the extent of contact predicted these attitudes better than any other variable, including political ideology, and a 2001 meta-analysis of 500 studies about contact theory concluded that greater understanding between groups can be facilitated by essentially any contact.

I see absolutely no justification for segregated housing in a university. Or rather, students give justifications, but I reject them.

The other position taken by Strossen is that universities should not themselves take ideological positions with respect to specific issues (BDS would be one of these). She explains why on pp. 174-176; here’s one quote:

In light of the foregoing academic freedom concerns, one might argue that university officials, acting in their official capacities, should refrain from engaging in any responsive counterspeech, even in response to speech that is clearly hateful. University of Chicago law professor Geoffrey Stone—who, like Kalven, is a leading First Amendment scholar and advocate—supports this stance, arguing that “[w]henever a university arrogates to itself the authority to ‘declare’ certain positions to be ‘true’ or ‘false,’ it necessarily chills the freedom of its faculty and student to take contrary—officially disapproved—positions.”

Let me suggest a plausible alternative strategy that both honors academic freedom and enables the university to stake out its own position on fundamental issues: a university should be able to engage in proactive counterspeech by issuing an affirmative statement of general principles that it champions, which should include not only freedom of speech and academic freedom, but also equality, diversity, and inclusivity. Such a broad, forward-looking statement should also explain that university officials’ “no comment” policy toward specific controversial expression by members of the campus community should not be construed as endorsin any such expression, but rather as reflecting the university’s fidelity to academic freedom.

This makes a lot of sense and, indeed, is the University of Chicago’s policy when students demand that it condemn specific policies or on-campus speeches.

This policy is relevant to an upcoming event at the University of Massachusetts at Amherst, described in the following article in the Fitchburg (Massachusetts) Sentinel and Enterprise (click on screenshot):

UMass Amherst leaders are facing backlash for not taking a strong enough stance against an upcoming campus forum that many groups are condemning as anti-Semitic and anti-Israel.

The May 4 event, “Not Backing Down: Israel, Free Speech and the Battle for Palestinian Right,” will feature Roger Waters, the Pink Floyd rocker and advocate for Palestinian human rights, and Palestinian political activist Linda Sarsour.

“We are deeply concerned about the ‘Not Backing Down’ event taking place on campus, as are many UMass students, alumni, and community members,” UMass Hillel, the center of Jewish life on campus, said in a statement.

UMass Hillel added that it’s “particularly disconcerted” the event is being co-sponsored by university departments: the Department of Communication and the Department of Women, Gender & Sexuality Studies.

The Anti-Defamation League in a letter to UMass Amherst expressed “deep concern” about the event, also pointing to the co-sponsor departments.

Speakers at the event include hatemongers like Linda Sarsour, Roger Waters, and Marc Lamont Hill.  It’s clearly going to be a hatefest toward Israel tinged with anti-Semitism, but I support the University’s right to have it. As Campus Reform notes, “80 civil rights, education, religious, faculty, and student organizations have called on UMass to rescind its sponsorship of the event.”  I disagree with them.

So does the Chancellor of the University of Massachusetts, who issued a longish statement defending the right of the college to host the event, though it contributed no funds toward it. The event, after all, is sponsored by academic departments, including Women, Gender & Sexuality Studies (no surprise there!). I’ve put Chancellor Subbaswamy’s admirable statement, defending free speech and viewpoint neutrality, below the fold to reduce the TL; DR factor, but here’s one excerpt—the only misstep he makes:

The opinions expressed by participants at the May 4 event and other such events do not represent the views of the University. And, as has been stated repeatedly, the University remains firmly opposed to academic boycotts of any kind, including BDS.

This violates Strossen’s dictum above by giving a university position on BDS. Much as I despise BDS, which I consider an anti-Semitic movement whose aim is to obliterate the state of Israel, I think universities should take no official stand on it beyond affirming the kinds of general principles Strossen outlines.

These kinds of free-speech issues are constantly arising on campuses, and that’s why you should familiarize yourself with Strossen’s arguments and data.

Continue reading “Nadine Strossen’s new book on hate speech, why such speech should not be censored or banned, and its relevance to recent campus events” →

Court rules that flipping someone off is free speech

March 19, 2019 • 8:30 am

If you had asked me before this story broke whether giving someone the finger counts as protected free speech, I would have said, “Yes.” After all, it’s an expression that doesn’t hurt anyone physically and is simply a gesture that expresses one’s feelings. If burning an American flag is considered free speech, as it is, then so should be “giving the bird.”

But, according to the New York Times (article below), a cop in Michigan didn’t think so. After Debra Cruise-Gulyas was stopped for speeding in Taylor, Michigan, she got a break: Officer Matthew Mindard gave her a ticket for a “non moving violation”—less serious than a ticket for speeding. She wasn’t grateful, though, and as she drove off she gave this sign to the officer:

Then the machinery of the law began to grind finely, as the paper reports:

Officer Minard was clearly offended, and he stopped Cruise-Gulyas again, giving her the more serious ticket for speeding. Cruise-Gulyas filed suit, claiming not only that her speech was protected (First Amendment), that the officer was retaliating against her protected speech (First Amendment), and that the cop “restricted her liberty” (a due-process violation of the Fourteenth Amendment). This would go to a federal court as she was objecting on constitutional grounds, not on anything about Michigan law.

Cruise-Gulyas won in a lower court, the government appealed, and then the Sixth Circuit Court of Appeals just ruled unanimously that the second stop was illegal (pdf of decision is here).  Cruise-Gulyas won on the First Amendment claim, while the judges didn’t bother to rule on the Fourteenth Amendment claim. Here’s part of the decision:

But why, then, can judges change a plea deal if the accused behaves offensively? The court dealt with that, too.

That’s a bit less convincing, as it counts the interval between the two events (deal/revocation of deal, non-moving ticket/moving ticket) as the significant factor. Well, the judges have ruled, and in this case I think they’re right.

As the Times notes, there is a legal precedent for this ruling:

There are at least two earlier cases in which federal courts made similar decisions.

In 2013, the United States Court of Appeals for the Sixth Circuit decided against qualified immunity for a police officer who had arrested a teenage girl after she raised two middle fingers in front of him; the girl’s mother had been killed by the police a few years earlier. Also in 2013, the United States Court of Appeals for the Second Circuit decided that an officer should not have been granted qualified immunity after he arrested a man who had raised a middle finger while passing by in a car. The officer had followed the car and a verbal confrontation had ended in the man’s arrest.

These courtroom decisions do not necessarily mean that people can be rude to police officers with impunity, or that people would feel safe doing so, especially since police officers have used deadly force against unarmed people and avoided facing charges.

Joanna C. Schwartz, a law professor at the University of California, Los Angeles, and an expert on police misconduct litigation, noted that Ms. Cruise-Gulyas and a few others had their rights recognized only after they went through the trouble of bringing their cases to court.

“The right is there, but the enforcement of that right is a more complicated matter,” she said, noting that many people who experience police misconduct do not report it. “There is a gap between what the Constitution allows and requires, and how police behave on the street. And getting from the street to the courthouse is a long and expensive process.”

The lesson is that you still shouldn’t be rude to cops for two reasons: they might rough you up or give you more serious charges, and if you want redress for that you’ll have to go through the expensive and time-consuming process of litigation. Ms. Cruise-Gulyas should have been grateful for the lesser ticket—assuming that she was speeding.

h/t: Tim

U of C minority law students boycott “admitted students weekend” after University fails to condemn professor who used “n-word” in class as an example; students further call for restrictions on free speech

March 17, 2019 • 1:30 pm

I’ll try to be brief here, but there’s a new series of incidents on my campus that has wound up with some law students calling for restrictions on free speech, and free speech is a flagship principle of the University of Chicago.

The incident involves Professor Geoffrey Stone of the Law School, who was the chair of the group that produced the Chicago Principles of free speech. He’s a respected constitutional lawyer, clerked for Supreme Court Justice William Brennan, and has served as Dean of the Law School and Provost of the University. He’s a well-known liberal and author of many books on constitutional law.

But he also said the “n-word” in class: not, of course, to denigrate black people, but as an example of “fighting words” in a discussion of the First Amendment.  As the Chicago Maroon, the student newspaper, reported (click on link below), Stone has been using that word for years as an example:

From the Maroon:

For over 40 years, Stone has been telling the same anecdote to his First Amendment class and at guest lectures at other schools when teaching the fighting words doctrine. This doctrine holds that expressions of words that incite violence are not constitutionally protected by the First Amendment.

Stone would tell the anecdote as follows: In class over 40 years ago, a Black student said that the fighting words doctrine is outdated because words long deemed as “fighting words” no longer provoke violence. A white classmate then called the Black student the slur, saying, “That’s the stupidest thing I’ve ever heard.” This prompted the Black student to reach over and grab the white classmate by the neck. Stone believes the white student’s use of the slur and the Black student’s response in that moment precisely demonstrate the continued relevance of the fighting words doctrine.

In an interview with The Maroon late last week, Stone explained why he had been using the full epithet when telling the anecdote.

“It’s important, If you’re teaching a legal concept, to use the words that are the subject of the legal prohibition and to ask, ‘should they be [legally prohibited]?’” For Stone, an important part of discussing why certain words are prohibited is to confront the harm that they can cause by saying the words in full.

“It’s utterly inexcusable to use the word for the purpose of degrading and insulting someone,  but it’s a word that exists in our history, in our society, in our law, and you need to address it,” he said. “Not addressing it is almost failing to acknowledge how ugly and how offensive it is.”

He added that limiting the use of the epithet has broader implications, saying, “Once you say you’re not going to say this word, you’re inviting endless discussions about any other words on the list, the concepts on the list, and what else offends or upsets people.”

Here’s a photo taken at the protest. Note that one student is holding up a poster with the “n-word” on it. That puzzles me, for if the very sight or sound of the word is triggering, then he shouldn’t be doing that. If you say that it’s not triggering in the right context, why is Stone’s use of it the wrong context? Would it have been okay if Stone had been black?

Photo courtesy of Black Law Students Association

But times are changing, and that word is no longer acceptable, even as an example, although black people are able to use it (see below). As the Maroon reported:

Stone said that his past stance was consistent with the norm of other contemporary legal scholars, citing Randall Kennedy, a Black professor at Harvard Law School. Kennedy wrote an op-ed in The Chronicle of Higher Education last month criticizing the administration of Augsburg University in Minneapolis for suspending a professor who said the racial slur in class when discussing literature by James Baldwin, and has also written a book specifically about the slur.

I feel that the word should not be banned, but should be used judiciously, as for example, when reading from Huckleberry Finn or James Baldwin or quoting lyrics of rap songs. Kennedy’s book is even called Nigger: The Strange Career of a Troublesome Word.

Some members of the Black Law Students Association then got together and had an impromptu teach-in, with speeches, in the law school. Stone happened to walk by and, at the request of BLSA members, sat down to listen to them. To his credit, he pondered what they said, and, in his First Amendment class an hour later, announced that he wasn’t going to use the word again when teaching. If he uses it in the future, he’ll refer to it as “the N-word.” As the Maroon further reported:

He said he ultimately decided that “though there was value in using the word, this was a situation where the cost was greater than the benefit.”

“I never appreciated, before, the extent to which [hearing the slur] was disconcerting and painful,” Stone said, adding that the conversation in the lounge “gave me a very different understanding that these arguments are not just political correctness, that there’s really something powerful there, and I found that very moving.”

“It’s not essential,” he said he realized about saying the slur. “It’s the distinction between useful or important and essential. There are lots of things that you don’t do in a classroom as a teacher which might be useful, but you don’t do them for whatever reasons.”

Stone added that he considered his decision through a personal lens. He said he has two half-Black grandchildren and he realized he would not want his grandchildren “to have to face this reality and sit there and go through what these students are going through.”

Though Raban’s op-ed did raise strong criticisms against Stone, Stone maintains that he decided to stop saying the slur not in fear of public backlash, but after being persuaded by the Law students in the lounge.

“They had the opportunity to say what they had to say to me, and did it so effectively,” he said. “I listened and changed my mind. That’s what free speech is about.”

In lecture, he announced to the class that he would no longer say the full epithet and tell the anecdote in class anymore. He told The Maroon that if the epithet comes up in his class, he “will refer to it as ‘the N-word.’”

I commend Geoff for this. He wasn’t bowing to pressure but to reason: he decided that his use of the word in class was no longer efficacious.  It was his choice, for the University defended his right to say anything he wanted, adhering to Stone’s own Chicago Principles:

Asked for comment on Stone’s past use of the epithet and his change of mind, the University said in a statement to The Maroon, “We believe universities have an important role as places where controversial ideas can be proposed, tested, and debated by faculty and students. Faculty members have broad freedom in the choice of ideas to discuss in the classroom and in their expression of those ideas, and students are free to express their views on those subjects.”

Here’s a photo of Stone listening to members of the BLSA:

Photo courtesy of Black Law Students Association

That should have been the end of it. But it wasn’t. The students, as reported in another article (link on screenshot below), asked the University to condemn Stone’s use of the word, and when it didn’t (as it won’t given the Chicago Principles), they decided to organize a demonstration. The BLSA and five other minority law-school groups are going to boycott “Admitted Students Weekend”, the time when students who have been admitted come to campus to meet with students and professors and get a feeling for the school. That weekend is critical in their decision about whether to come here.

Read on:

All five racial and ethnic affinity groups at the Law School will boycott Admitted Students Weekend early next quarter, the Black Law Students Association (BLSA) announced in a petition sent to Law School administrators on Monday.

BLSA decided to organize the boycott of one of the Law School’s largest annual recruitment events after administrators did not condemn law professor Geoffrey Stone’s longtime use of a racial epithet in class, a controversy that recently resurfaced. The other affinity groups participating are the Latinx, Asian and Pacific American, South Asian, and Southwest Asian and North Afrikan Law Students Associations.

There are other forces behind the boycott, too, such as disaffection with statements made last year about immigrants by conservatives on campus as well as other unspecified claims of racism on campus.  Stone’s use of the “N-word,” they say, is “symptomatic of a larger issue in the Law School.”

This refusal of minority-student groups to participate, of course, may well backfire, hurting the recruitment of minority students. Students of color participate in Admitted Students Weekend to help recruit other students of color. That won’t happen now, and this will surely deter minorities from coming here if they sense that current law students are disaffected. I presume the BLSA and others have weighed the risks and are using their nonparticipation as leverage to make the University bow to their demands.

Of course if there is real racism that can be rectified, the University should listen. And I have confidence that it will. But what bothers me is that the students seem to be asking for some watering-down of the Chicago Principles, so that there is no longer “free speech” that can be considered “hate speech”, as Stone’s presumably was. Here’s the Maroon’s reporting on the free speech issue:

The conflict underpinning the boycott stems from disparate views of how the University’s Chicago Principles on free speech should be applied. Law School administrators believe that, in accordance with the Chicago Principles, they have a presumption against weighing in on the speech used by a professor or campus group. The affinity groups, however, believe that in instances in which speech causes enough harm to students, administrators should weigh in.

“Free speech is not free, and as it is currently applied, the University’s free speech policy, the ‘Chicago Principles,’ leaves Black students bearing the costs,” BLSA said in the petition.

The petition, also published as an online petition, asks the Law School to “reconsider its absolute embrace of the University’s Freedom of Speech policy, or at the very least, reassess when and how the exceptions are applicable.” The petition also asks the Law School to “adopt an affirmative statement that expresses the Law School’s commitment to diversity and inclusion, professional ethics, and the fundamental pillar of civil discourse.”

This point is where my sympathy for the students ends. Free speech certainly is free here: the BLSA not only wrote op-eds and gave speeches, but persuaded Stone to change his mind. That’s the way free speech is supposed to work. In what sense do they mean “Free speech is not free”? I shudder to think.

The Chicago Principles allow all kinds of speech, including what Stone said in class, and we all know that if you start banning words or censuring/censoring professors for saying certain things, there will be no end to it. And, as always, who gets to decide what speech is banned? Every group will have its own list of things that cannot be said.

I simply cannot sign on to the students’ demand that our free speech policy be diluted. By all means the Law School should issue a statement affirming its commitment to diversity, inclusion, and professional ethics, but that should never include censorship of speech.

I’ve said enough, as regulars here know my views. I’ll just put a screenshot of the comment I made at the end of the second Maroon article above (the other commenters are of similar mind):

Note: they removed my comment when I added this website URL, so I’ll just put it back again.

FFRF loses a slam-dunk case in Federal appellate court

March 16, 2019 • 2:00 pm

If ever a First Amendment case looked like a winner, it was this one: the U.S. government keeps giving a tax exemption to ministers so that their housing allowances provided by the church—allowances that could be substantial, and include house renovations—remain tax free. No other people save “ministers of the gospel” (I assume that includes non-gospel-adhering rabbis) get this benefit.

This is blatantly unconstitutional, for it violates the First Amendment by privileging ministers of religion over anybody else.

As I wrote two years ago, here’s the relevant section from the U.S. Tax Code:

A licensed, commissioned, or ordained minister may be able to exclude from income the fair rental value of a home (a parsonage) or a housing allowance provided as compensation for ministerial services performed as an employee. A minister who is furnished a parsonage may exclude from income the fair rental value of the parsonage, including utilities. However, the amount excluded can’t be more than reasonable compensation for the minister’s services.

A minister who receives a housing allowance may exclude the allowance from gross income to the extent it’s used to pay expenses in providing a home. Generally, those expenses include rent, mortgage interest, utilities, repairs, and other expenses directly relating to providing a home. The amount excluded can’t be more than the reasonable compensation for the minister’s services.

Note that this includes utilities, repairs, as well as other stuff not listed above but included by the law and the courts: cable television fees, towels, bedding home decor, and computers.

The loss to the government from this unconstitutional stipulation is about $700 million per year.  As the FFRF notes in the report below, “84 percent of senior pastors receive a housing allowance of $20,000 to $38,000 in added (but not reported) compensation to their base salary.”

The Freedom from Religion Foundation (FFRF) went after this, and the 6-year battle has been tortuous:

  • In 2013, the FFRF sued the government in Federal District Court, and won
  • That verdict was overruled on appeal, as the appellate court ruled that Annie Laurie Gaylor and Dan Barker (co-Presidents of the FFRF), who had sued, didn’t have standing, and couldn’t prove they’d been injured by the law (“standing” is often a way for courts to get rid of distasteful cases without having to rule on the law)
  • Annie Laurie and Dan then made themselves “injured” by claiming a refund of housing allowances on their own taxes, which of course was denied. That was the requisite injury. They went back to court
  • On October 2016, the Western District Court of Wisconsin ruled that the law violated the First Amendment. A big win for the FFRF!
  • But of course, as I reported here, the government appealed, and so the case went to the Seventh Circuit Court, headquartered in Chicago.  The Seventh Circuit is notably conservative (read FFRF lawyer Andrew Seidel’s assessment of the case at this stage).

And a ruling has just come down from the court, as reported in this FFRF bulletin (click on the screenshot). Sadly, the 3-0 ruling was in favor of the government, affirming that clergy indeed have a right to tax-free housing expenses, computer fees, costs of bedding, cable television, and so on. Read and weep (click on the screenshot):

You can see the court’s unanimous decision here.  They weaseled out of the First Amendment by relying on the “historical significance test”, which simply claims that favoring religion (like putting “In God We Trust” on money) loses its significance as a religious trope over time as it slowly elides into “history”. Here’s part of the ruling, and you can see how weaselly it is:

As the FFRF reports further:

While Crabb (in the original pro-FFRF judgement) ruled that “the plain language of the statute, its legislative history and its operation in practice all demonstrate a preference for ministers over secular employees,” the appeals court panel disagreed, applying what they called “the historic significance test.”

Wrote Brennan: “FFRF claims §107(2) renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by latter. We conclude §107(2) is constitutional. The judgment of the district court is reversed.”

This shows that ministers are not entitled to the benefit, therefore Congress could repeal it. “It’s an injustice not just to us, but to taxpayers who have to pay more than their share, because clergy pay less,” Gaylor says.

Nor did the appeals court decision address the problem that the financial benefits apply even to wealthy ministers. “The manner in which our housing allowance has been used borders on clergy malpractice,” William Thornton, a Georgia pastor and blogger, told Forbes magazine in 2013. “A growing subset of ministers who are very highly paid and who live in multi-million dollar mansions are able to exclude hundreds of thousands of dollars from income taxation.”

You can see the way the courts get around something that’s palpably unconstitutional but whose elimination would piss off a lot of religious people. “Religion” simply becomes “American history.”

What’s next? I suppose the FFRF is weighing an appeal, but you know where that would go: to the U.S. Supreme Court. With that court stacked with conservative, god-fearing Justices, the prospects don’t look good. And so a chink has appeared in the wall between church and state. Jefferson would be appalled.

Is there a cogent argument against free speech?

March 11, 2019 • 12:30 pm

I’m not 100%, set-in-stone wedded to the American courts’ interpretation of free speech and the First Amendment. I think it’s the best interpretation going, but I’m always looking for viable arguments that it should be modified. Here’s what purports to be one, but in the end proves limp and toothless.

The argument is given in a Vox interview in which University of Chicago law professor Brian Leiter, who also has a personal website called Leiter Reports, argues that the First-Amendment style of free speech is not the best we can do for expression, and suggests that some modifications are in order. He’s interviewed by Sean Illing, who is a free-speech absolutist like me; and Illing pushes back hard.

The interview is frustrating because, though Illing asks good questions, Leiter is very slippery about what modifications he would make to our speech laws to improve things. But the discussion stems from an argument Leiter made in a paper in the Sydney Law Review, a paper I haven’t read (it’s free online here).

So I’ll just go by what Leiter and Illing say in their discussion. First, Illing’s introductory characterization of Leiter’s argument:

Leiter argues that we shouldn’t think of free speech as an inherently good thing and that there are negative consequences for pretending that it is.

The sort of speech he’s talking about is public, the kind of stuff we hear on television or read in newspapers. He’s not suggesting we should even think about regulating private or interpersonal speech. And in fact, he doesn’t think we can even regulate public speech, mostly because we just don’t have a reliable way to do it.

But he does raise some interesting objections against what’s often called the “autonomy” defense of free speech, which holds that people are only free to the extent that they’re allowed to say what they want, read what they want, and determine for themselves what is true and what is false.

According to Leiter, this is a bogus argument because people are not actually free in the way we suppose. We’re all conditioned by our environment, and what we want and think are really just products of social, economic, and psychological forces beyond our control. If he’s right, then the “autonomy” defenses of free speech are just wrong, and probably dangerous.

I don’t quite get this, and perhaps Leiter’s paper can add some clarification. The “autonomy” defense of free speech seems to me a non-defense. Of course we’re all products of our environment and the like, but that’s neither my defense of free speech nor my argument about why speech shouldn’t be censored. That argument is simply that no matter who is conditioned by their genes and environment to say what, it’s best for society to allow free speech so long as it doesn’t cause palpable physical injuries or psychological damage due to harassment (or to slander or libel) that would harm society were they allowed. This says nothing about autonomy.

But let’s proceed. In what ways does Leiter say speech would be better off if it had more restrictions than America has now?  It seems to me to boil down to one thing: the American populace isn’t sufficiently mature to create and reap the benefits of free speech, and so needs guidance to winnow out irrelevant arguments. For example, Leiter says this:

My paper is about running through all the arguments people make in defense of this assumption and showing why they don’t hold up. I’ll start with the simplest one, which is this idea that a free marketplace of ideas is likely to help promote discovery of the truth. This is probably the most famous defense of free speech associated with the British philosopher John Stuart Mill.

But what people often don’t stop and notice is that even Mill thought certain background conditions had to be established for it to really be true that a marketplace of ideas would lead to the discovery of the truth. Mill said, “People have to be educated, and they have to be mature.” Those are pretty thin conditions, and you might worry that a lot more is required for a real marketplace of ideas to be conducive to the truth.

As I point out, we have an important institution in American society that aims to discover the truth, namely the court system. And the striking thing about the court system is that it completely rejects the marketplace of ideas view. It says, “It’s crazy to think we’ll discover the truth by just permitting people to express any view they want, make any claim they want.” In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.

Well, the courts have legal restrictions that are supposed to facilitate the discovery of the truth, like keeping out irrelevant testimony and the like. Leiter also mentions that he doesn’t allow free speech in his classes: he determines the syllabus and what is discussed.  But to do these things in society at large, we would have to have someone determine which arguments are relevant and which are not. In other words, we’d have to have a censor.

And that is where Leiter punts. After Illing squeezes him hard about the inevitable question, “Who is to be the censor?”, Leiter has no answer:

. . . at the end, I actually argue for a pretty strong libertarian approach to free speech, but not on the grounds that the speech necessarily has value. A lot of it has no value, as you correctly said in your summary.

But basically I don’t think we can be confident that the regulation of speech, or the regulators of speech, would make the right choices in discerning what is good and bad speech, or what is helpful or unhelpful speech. But this says more about the pathologies of the American system than it does about the value of freedom of speech.

. . . Sean Illing

Given everything you’ve said, given the paucity of realistic solutions, what’s the point of an article like this? Why make the case against free speech if there aren’t any viable means of improving speech?

Brian Leiter

The fact that there aren’t solutions now isn’t a reason not to identify a problem. And of course, one point of the article is to challenge what I think is a slightly unthinking popular consensus. Free speech isn’t an inherently good thing; it can be good or it can be bad, and normally we think of the law as something that can step in when things can be both good or bad, like operating a motor vehicle, for example, which is why we have rules about it.

But in the case of speech, we have good reason to be worried about whether we’ll make the right rules. And therefore, the real question that we need to talk about isn’t about assuming the intrinsic value of speech. It’s about why we have a political and economic order that makes it impossible for us to regulate all the bad things about speech in a reliable way.

You see why I find this discussion frustrating?