Category: law

J. K. Rowling scuppers Scotland’s new “Hate Crime and Public Order Act”

April 12, 2024 • 10:30 am

There’s a good article in Quillette showing how one person, the notorious but (to me) highly admirable J. K. Rowling singlehandedly undercut Scotland’s new Hate Crime and Public Order Act that came into effect on April 1. I explained this law on March 27, also showing how the Scottish Police published as an example a woman named “Jo” (Rowling’s nickname) who said that people who didn’t identify as one of the two genders “should be put in the gas chambers.”  That is, of course, an oblique swipe at Rowling by the government, and I suspect she could have sued for defamation. But she got her revenge in another way.

Rowling has been attacked by gender activists for two of her stands: that trans women remain (biological) men (and vice versa), and that certain positions should be reserved for natal women, including participation in women’s sports, incarceration in women’s prisons, and rape and sexual-violence counseling.  I agree with both of these positions, and also with Rowling’s insistence that with these exceptions trans people should be treated with respect and dignity, and afforded all other rights.

That, of course, is not enough for gender activists, who have demonized Rowling as a transphobe. But she refuses to be demonized, and has fought back against her detractors as well as against the new law, which basically equates trans women with biological women in all respects, and also penalizes those who oppose this view.

Click below to read, and I’ll show how Rowling took down the law. She did it with tweets.

You can see the new law, which I’ll call the HCPOA, at the first link above. It’s basically a blasphemy law that wouldn’t stand in America since it violates the First Amendment guaranteeing free speech. Here’s how I described it before:

Note that it is a crime to make statements about age, disability, religious affiliation, sexual orientation, transgender identity, or “variation in sex characteristics”, stuff that a “reasonable person” would find “threatening”, “abusive”, and even “insulting”.  You don’t even have to have the intent of stirring up hatred.

Further, look at (2)aii above. You are committing a crime even if you “communicate to another person material that a reasonable person would consider to be threatening or abusive”.  So, for example, if you email a friend that a guy you don’t like “must have a small dick” (a common insult for males, but also abusive because it makes fun of “variation in a sex characteristic”), or say to someone “Jack is a dotty old codger”, which insults someone on the grounds of age, then those might be offenses.

Also, as one reader said, “Part of the reason why people are so worried is that the guidance that Police Scotland have issued seems to be somewhat different from what the law itself says. It’s a download document 29 pages long.”  Looking at it briefly, I find two things extra worrying.

First, even if what you do doesn’t amount to a “crime,” it’s supposed to be reported and the coppers will investigate it, probably putting your name on the record,

Indeed, they DO put your name on the record, even if you haven’t violated the law. And employers and others can get access to your record. Note too that women are not included in the protected class, so you can spew all the misogyny you want. Here’s one example from the article:

Most of us wouldn’t regard mocking someone’s “non-binary” identity as deserving of a “hate incident” marker, but that’s what happened to a Conservative MSP, Murdo Fraser, after he shared a post on X ridiculing the Scottish government’s “non-binary action plan.” Every “community” has to have its own action plan these days, leading to a proliferation of oppressed groups with confusingly similar titles. “Choosing to identify as ‘non-binary’ is as valid as choosing to identify as a cat,” Fraser wrote. “I’m not sure Governments should be spending time on action plans for either.”

He was aghast when he discovered that Police Scotland had logged an NCHI on his record for this joke, but hadn’t done the same in relation to the complaints against Rowling and Yousaf. He accused the force of “double standards” while SNP MP Joanna Cherry, a rare sensible voice within the party, suggested that senior officers were revising policy “on the hoof” to avoid the embarrassment of recording an NCHI against an internationally famous author. (This sequence of events became even more absurd when the force suddenly changed its tune, telling Fraser his personal details hadn’t been logged in relation to an NCHI after all.)

Further, application of this law is subjective, particularly because the determination of “hate” depends not at all on the violator’s intention, but on the subject’s interpretation of the violator’s motivation. It is, in other words, an “I’m offended” law.

That’s insane. As you might expect, the Scottish coppers are being flooded with complaints, many of them probably designed to undercut the law. They’re coming in at the rate of one per minute, and the cops are complaining that investigating every report (which they must do) distracts them from investigating more serious crimes. Finally, if you don’t want to deal directly with the cops when reporting an offense, the government has designated some weird “third party reporting centres” where you can register your offense. These include a sex shop (!) and a salmon and trout farm, presumably where you can buy some lox without being doxed.

Enter Rowling, my hero. She simply issued a series of tweets, the last one of which completely undermined the law by demanding that if anybody is arrested for misgendering (e.g., “going after a woman for calling a man a man”) she would simply repeat what got the person arrested so Rowling could be charged, too. And of course the Scottish police are not going to charge J. K. Rowling!

To show her devastating attack, delivered with with and humor, I’ll show all of Rowling’s tweets, as some will make sane people laugh.

First, her pinned tweet laying out her views. It’s long and you can click on it to read the whole thing, but note that she starts with the biological definition of the (two) sexes:

I believe a woman is a human being who belongs to the sex class that produces large gametes. It’s irrelevant whether or not her gametes have ever been fertilised, whether or not she’s carried a baby to term, irrelevant if she was born with a rare difference of sexual development that makes neither of the above possible, or if she’s aged beyond being able to produce viable eggs. She is a woman and just as much a woman as the others.

And then the devastating series of ten tweets followed by her admission that she was “just kidding”, and then her big challenge to the legal system..

“Love the leggings!” LOL.

The last tweet is her admission that she’s violated the HCPOA. Click screenshot to read the whole thing.

And, at the end:

It is impossible to accurately describe or tackle the reality of violence and sexual violence committed against women and girls, or address the current assault on women’s and girls’ rights, unless we are allowed to call a man a man. Freedom of speech and belief are at an end in Scotland if the accurate description of biological sex is deemed criminal. I’m currently out of the country, but if what I’ve written here qualifies as an offence under the terms of the new act, I look forward to being arrested when I return to the birthplace of the Scottish Enlightenment. If you agree with the views set out in this tweet, please retweet it.

Yes, ma’am:

The ten tweets above, with the eleventh as a finale, is one of the great takedowns of virtue-signaling activism of our era, featuring transwomen who, says Rowling, are “men, every last one of them.” Clearly an offense!

But the cherry atop this Cake of Snark is this:

As Quillette noted, “Feminists hailed the novelist as a heroine, understanding that she had thrown the protection provided by her wealth and status over thousands of other women.”  And don’t you doubt that if anybody is charged for a hate crime by calling a transgender woman a “man”, Rowling will simply repeat it. The cops would have to charge Rowling, too, and what are they chances they’d do that?

The new law, as an “I’m offended” blasphemy law, is unnecessary, unworkable, and impossible to apply.  It is not needed and should be repealed.  I have no idea what brought this dumb law onto the books, but Quillette hazards a guess, involving the Scottish drive for independence from Britain:

The ruling Scottish Nationalist Party (SNP) lost a crucial referendum in 2014, failing to persuade enough Scots to vote in favour of independence, and it has seemed rudderless ever since. Much of what has happened in Scotland in the last decade can be traced back to that crushing disappointment, as the SNP struggled to establish its purpose and identity. In an irony that’s hard to miss, a party built on the supposedly indelible differences between the English and Scottish has sought to solve its problem by embracing a faddish ideology, transgenderism, which proposes that anyone can be whatever they like. And that includes an apparently unshakable conviction that men can become women and vice versa.

Indeed identity politics has become as central to the SNP’s creed, if not more so, than taking Scotland out of the UK. In a reversal of Whisky Galore-type stereotypes, in fact, the Scots have now taken on the role of witch-finders, sniffing out heretical thoughts under the cover of a supposedly liberal ideology. A vast amount of parliamentary time has been wasted on bad and unnecessary legislation advocated by trans activists, including a bill to remove all safeguards from the process that allows people to change their legal gender. The UK government salvaged the day by blocking the reckless Gender Recognition Reform Act last year, but the SNP had another trick up its sleeve.

The Hate Crime and Public Order (Scotland) Act came into effect on April 1—April Fools’ day, as critics were quick to point out. It’s been on the statute books since 2021, but implementation was delayed because no one could say with any certainty what it actually criminalised.

Well, who knows? But I do know that J. K. Rowling, despite her fame and wealth, has risked something more valuable—her reputation—by standing up for her principles.

New hate speech legislation threatens free expression

March 10, 2024 • 9:40 am

As people continue to fight an uphill battle for free speech in the U.S.—at least on college campuses—various Anglophone countries are busy confecting new hate speech laws.  These include but are not limited to blasphemy laws, a subset of restrictions that prohibits dissing religion. Wikipedia gives useful worldwide surveys of blasphemy laws as well as hate speech laws, divided up by country. You’d be surprised at how many Western countries have both kinds of laws, though often they’re not enforced.  But the new ones might well be, and I’m especially concerned about Britain, which seems to be on a binge of arresting or threatening people for speech that would be legal in America.

In a new article at The Free Press (click below to read), Rupa Subramanya summarizes new hate speech legislation in Britain, Canada, and Ireland, and has a few words about the Biden administration’s attempt to cub certain forms of speech that adhere to the First Amendment.

I’ll summarize what Subramanya says by country. Her text is indented, and anything flush left is mine.

CANADA

Take Canada. Civil liberties groups north of the border are warning a new bill put forward by Justin Trudeau’s government will introduce “draconian penalties” that risk chilling free speech. How draconian? The law would allow authorities to place a Canadian citizen under house arrest if that person is suspected to commit a future hate crime—even if they have not already done so. The legislation also increases the maximum penalty for advocating genocide from five years to life.

These punishments depend on a hazy definition of hate that Noa Mendelsohn Aviv, executive director and general counsel of the Canadian Civil Liberties Association, has warned could blur the line between “political activism, passionate debate, and offensive speech.”

A life sentence for advocating genocide?!  (Note that the CBC below says that a life sentence in Canada is actually 25 years.) But advocating genocide is not even illegal in the U.S., so long as your speech is not inciting imminent and predictable violence. I could stand in downtown Chicago and cry “Gas the Jews” without violating any laws. Or give a speech on it, though of course nobody would invite me to do that save perhaps the SJP.  And that’s okay, because so long as you’re not intending to incite violence, your arguments could help opponents sharpen theirs, and at the least “out” you as a hateful bigot. Remember, free speech frees you from the legal consequences of your speech but not the social consequences. And of course you can be fired from some jobs for such expressions.

The first link above, from the CBC, verifies this, and says that “regular” hate crimes could carry a sentence of up to five years. It also shows how nebulous the proposed definition of “hate” and “hate speech” are these:

The bill proposes increasing the maximum punishment for advocating genocide to life imprisonment, and allowing sentences of up to five years in prison for other hate propaganda offences.

. . .[Hatred] will be newly defined as “the emotion that involves detestation or vilification” that is “stronger than disdain or dislike.”

The bill also says that a statement that “discredits, humiliates, hurts or offends” would not meet the bar to be considered promoting or inciting hatred.

The second bit—about what hate speech is not—is okay as it covers nearly all debatable issues, but basing true hate speech on interpreting an emotion is problematic.

Again from the CBC:

Jewish advocacy groups have welcomed the proposed changes, citing a sharp rise in antisemitism since the Israel-Hamas war began last fall.

In unveiling the potential life sentence for advocating genocide, [Justice Minister] Virani said he heard through consultation with stakeholders that the penalty should be increased.

Well, I’m a (secular) Jew, and I don’t welcome those changes. All they do is drive people who favor genocide underground, so though the proposed law may deter the expression of those sentiments, it won’t quash the sentiments themselves. Again, unless those calls actually lead to a genocide, or to immediate, intended, and predictable violence, both of which are unlikely, they should be legal.

IRELAND

In Ireland, the government is pressing ahead with controversial new restrictions of online speech that, if passed, would be among the most stringent in the Western world.

The proposed legislation would criminalize the act of  “inciting hatred” against individuals or groups based on specified “protected characteristics” like race, nationality, religion, and sexual orientation. The definition of incitement is so broad as to include “recklessly encouraging” other people to hate or cause harm “because of your views” or opinions. In other words, intent doesn’t matter. Nor would it matter if you actually posted the “reckless” content. Merely being in possession of that content—say, in a text message, or in a meme stored on your iPhone—could land you a fine of as much as €5,000 ($5,422) or up to 12 months in prison, or both.

As with Canada’s proposed law, the Irish legislation rests on a murky definition of hate. But Ireland’s Justice Minister Helen McEntee sees this lack of clarity as a strength. “On the strong advice of the Office of the Attorney General, we have not sought to limit the definition of the widely understood concept of ‘hatred’ beyond its ordinary and everyday meaning,” she explained. “I am advised that defining it further at this juncture could risk prosecutions collapsing and victims being denied justice.”

The law (see the link) also says you can go to jail for condoning, denying, or trivializing genocide, war crimes, or crimes against humanity. You don’t even have to promulgate this stuff: just denying it or trivializing it can send you to the slammer.

A murky definition of hate is a bug, not a feature, and is intolerable, for ite depends on “the everyday meaning of hate”, which varies among people. Further, “recklessly encouraging other people to hate” is ridiculous; an infringement on even talking to people without any clear consequences. What’s worse is that if you have “hate speech” stored somewhere but not shared, you can still go to jail.

BRITAIN

In Britain, existing online harm legislation means that tweeting “transwomen are men” can lead to a knock on the door from the cops. Now the governing Conservative Party is under pressure to adopt a broad definition of Islamophobia as a “type of racism that targets expressions of Muslimness or perceived Muslimness.”

Other parties have adopted this definition, and free-speech advocates in Britain worry that it is only a matter of time until a Labour-run government codifies the definition into legislation. To do so, they argue, would mean the introduction of a de facto blasphemy law in Britain.

There’s already a widely-used definition of “antisemitism” that can lead to punishment if it’s expressed in universities, and it’s this one:

“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

While such expressions are legal in the U.S., and in schools that adhere to the First Amendment, note that it refers to hatred of Jews, not of Judaism. The British government’s definition of Islamophobia refers to criticism of “Muslimness or perceived Muslimness,” which could be construed as a blasphemy law criticizing Islam.  In other words, the Charlie Hebdo or Jyllands-Posten cartoons could violate the law. But neither the expression of antisemitism nor either construal of Islamophobia (hatred of Islam or of Muslims) should be illegal.  They are legal in America, and I don’t believe our speech laws are a whit more divisive than they are in Britain, which seems to be undergoing a paroxysm of division.

As for the statement “transwomen are men” being illegal, that’s palpably ridiculous. It is in fact biologically accurate, and you shouldn’t be penalized for saying something that’s scientifically correct. The regulation is meant to buttress a gender-activist ideology to force society to give full rights to trans people as members of their assumed rather than their natal and defined sex. While nearly all rights for trans people should certainly be the same as for non-trans people, there are some exceptions—exceptions involve rape counseling, sports participation, and incarceration.

****************

I won’t go into the details about America and the Biden Administration’s failed attempt to get speech restrictions about matters affecting homeland security, but this sentence distressed me:

A worrying number of Americans appear to be sympathetic to [MSNBC legal analyst Barbara] McQuade’s argument. A 2023 Pew survey found that just 42 percent of voters agreed that “freedom of information should be protected, even if it means false information can be published.”

Well of course publication of some false information is already prohibited under the First Amendment, including false advertising and stuff that’s defamatory, but a lot depends here on what the public perceives as “publishable false information”. I think the American courts have already settled this pretty well, so I’m curious how many people even know the already-existing rules.

On new and old civil disobedience

January 28, 2024 • 11:30 am

According to my go-to source, the Oxford English Dictionary, “civil disobedience is defined this way:

Rebellion of the populace against a governing power; (in later use) spec. refusal to obey the laws, commands, etc., of a government or authority as part of an organized, non-violent political protest or campaign.

The three key aspects here involve deliberately breaking the law, doing it as part of a “political protest or campaign”, and doing it in a peaceful, nonviolent way. But I would add potential effectiveness: the actions must aim at achieving political results, and do so in a way that could reach those results.

The archetypal examples of civil disobedience that met these four criteria are the nonviolent protests of Gandhi and the Indian people that led the British to “quit India” in 1947, and the American civil rights actions of the 1960s that led to the nation-changing civil rights acts of 1964 and 1965.

Gandhi, of course, was one inspiration for Martin Luther King, Jr., who adopted Gandhi’s methods of nonviolent resistance. These were epitomized in his “Salt March” of 1930, which began when Gandhi led protestors on a three-week, 200-mile march to the sea, where Gandhi picked up a lump of salty mud, which was converted into salt. This violated the onerous “salt tax” that the British imposed on Indians buying the produce. Below is the moment that changed India; the caption is “Mahatma Gandhi at Dandi Beach 6 April 1930. Standing behind him is his second son Manilal Gandhi and Mithuben Petit.”

This civil disobedience launched an India-wide resistance movement, and a peaceful one, which played a major role in India gaining its independence in 1947.  Civil disobedience is best used as a way of changing people’s minds. And the Salt Resistance kindled similar protests across India, promoted other resistance, and eventually changed the mind of the British rulers. Here’s a video:

 

To quote Wikipedia:

The Salt Satyagraha campaign was based upon Gandhi’s principles of non-violent protest called satyagraha, which he loosely translated as “truth-force” Literally, it is formed from the Sanskrit words satya, “truth”, and agraha, “insistence”. In early 1920 the Indian National Congress chose satyagraha as their main tactic for winning Indian sovereignty and self-rule from British rule and appointed Gandhi to organise the campaign. Gandhi chose the 1882 British Salt Act as the first target of satyagraha. The Salt March to Dandi, and the beating by the colonial police of hundreds of nonviolent protesters in Dharasana, which received worldwide news coverage, demonstrated the effective use of civil disobedience as a technique for fighting against social and political injustice. The satyagraha teachings of Gandhi and the March to Dandi had a significant influence on American activists Martin Luther King Jr., James Bevel, and others during the Civil Rights Movement for civil rights for African Americans and other minority groups in the 1960s. The march was the most significant organised challenge to British authority since the Non-cooperation movement of 1920–22, and directly followed the Purna Swaraj declaration of sovereignty and self-rule by the Indian National Congress on 26 January 1930 by celebrating Independence Day.  It gained worldwide attention which gave impetus to the Indian independence movement and started the nationwide Civil Disobedience Movement which continued until 1934 in Gujarat.

A key principle of satyagraha is that the protest must be peaceful, and the protestors must take what punishment is dished out. One must, according to Gandhi, “Suffer the anger of the opponent” without retaliating.  (As you see above, that happened: Gandhis and thousands of other protestors were beaten and arrested.

When adopted by the American Civil Rights Movement, these principles were adopted wholesale. Rosa Parks protested an unjust segregation law and was arrested for peacefully sitting in the front of a bus and refusing to move.  The blacks and whites who demonstrated together at the Woolworth lunch counter sit-ins in Mississippi and North Carolina were peacefullyt protesting an immoral segregation law, and, as the video shows below, the protestors were jeered, pushed, and had food dumped over them, but did not resist.

If this video disappears, see it here.

The most iconic instances of civil disobedience that provoked violence by authorities, leading to sympathy for the protestors and eventually ending in the changing the laws, were the marches and civil protests in Birmingham and Selma, Alabama in 1963 and 1965, respectively, which led to the Civil Rights Act of 1964 and the Voting Rights Acts of 1965. Two videos:

“Bloody Sunday” in Selma: March 7, 1965:

The sight of peaceful protestors, both black and white, being attacked by dogs, drenched by fire hoses, run down by horses, and battered with billy clubs—all this was too much for America, and bent the moral arc upwards. It was the visuals, and the knowledge that the protestors were peaceful, yet protesting unjust laws and getting injured for their actions—all this horrified viewers. It’s one thing to read about it, but another to see it.  And in the end, this led to the greatest advance in civil rights in a century.

Protests like this one below are not peaceful. While the painting wasn’t damaged, the walls were, and we had simple vandalism.

From the NYT report:

Two protesters from an environmental group hurled pumpkin-colored soup on the Mona Lisa at the Louvre museum in Paris on Sunday, splashing the bulletproof glass that protects the most famous painting in the world, but not apparently damaging the work itself.

As the customary crowd around the 16th-century painting by Leonardo da Vinci gasped in shock, the protesters, two young women, followed up their attack by passing under a barrier and standing on either side of the artwork, hands raised in an apparent salute.

“What is more important? Art or the right to have a healthy and sustainable food system?” the activists said, speaking in French. “Our agricultural system is sick.” They were led away by Louvre security guards.

It was not immediately clear how the women got the soup through the elaborate security system at the museum, which borders the Seine and contains a vast art and archaeological collection spanning civilizations and centuries.

One of the women removed her jacket to reveal the words Riposte Alimentaire, or Food Response, on a white T-shirt. Riposte Alimentaire is part of a coalition of protest groups known as the A22 movement. They include Extinction Rebellion and Just Stop Oil, the group that poured tomato soup over Vincent Van Gogh’s Sunflowers at the National Gallery in London in 2022.

Does this help the cause of climate change? I doubt it. You might say it does because it calls attention to the problem, but I’m guessing that most of the people who saw this were angry at the protestors and not inclined to take a more salubrious view towards the idea that humans are changing the climate.  This is not only not civil disobedience, but, in my view, ineffective and immature.  Why, then, are they doing it? Your guess is as good as mine.

What about blocking traffic, bridge, and tunnels? This is the speciality of pro-Palestinian demonstrators; an example from Los Angeles is below.

Does this help the protestors accomplish their aims, which is either to bring peace in the Middle East, often to erase Israel and extend Palestine “from the river to the sea”? I doubt it: those whose cars are blocked may be more aware of the protests, but I don’t think they’ll become more sympathetic to the Palestinian cause.  But maybe I’m wrong. Maybe impressionable young people, who are ignorant of history but impressed by the loud, aggressive demonstrations of those favoring Palestine, will come to favor their cause. After all, it is the young who most take the side of Hamas (or Palestine) in the Hamas/Israel war.

At any rate, this is the new form of civil disobedience, although the protestors don’t willingly take punishment. Often there is  no punishment: when pro-Palestinian protestors illegally blocked the University of Chicago’s administration building, or, last Friday, did a lie-in in the Pret a Manger campus food-and-coffee shot, blocking entry, the University police stood by and did nothing.  Protestors here were arrested last year for conducting a sit-in in the admissions office, but the charges were dropped. (I am prevented from learning if the University will exercise its own sanctions for violating university regulations.)

This is the new form of civil disobedience in which protestors publicize a cause, violate regulations and laws, but face little or no punishment. And often they resist punishment or feel that they don’t deserve it. Publicity may be all they want, but it seems to me that political protest must go beyond publicizing a cause, but, to paraphrase Karl Marx, must have a chance of changing the world.

Do these protestors actually accomplish the kind of change they want?  I’ll leave it to the readers to discuss the issue, and I would appreciate hearing as many readers’ takes as possible.

Law firms issue statement saying they won’t hire haters or bigots

November 3, 2023 • 12:15 pm

I got an email and a link from Alex, a retired lawyer who said this:

At this link there is a letter that a bunch of law firms sent to the Deans of law schools – likely triggered by what happened at Harvard and other schools.
It’s a “get-your-act-together” letter.  And the statement “your students who hope to join our firms after graduation” implies that they may not want to hire students from certain law schools.
I was on the hiring committee of a major law firm (which wasn’t a signatory here) and I never saw such a joint statement issued before.  The firms are clearly concerned that the schools might be fostering an ideology that the firms don’t want to be associated with.

Alex said a bit more, but first I’ll show the letter, which was signed by 41 law firms

November 1, 2023

 

Dear Deans,

Everyone at our law firms is entitled to be treated with respect and be free of any conduct that targets their identity and is offensive, hostile, intimidating or inconsistent with their personal dignity and rights. We prohibit any form of harassment, whether verbal, visual or physical.

Over the last several weeks, we have been alarmed at reports of anti-Semitic harassment, vandalism and assaults on college campuses, including rallies calling for the death of Jews and the elimination of the State of Israel. Such anti-Semitic activities would not be tolerated at any of our firms. We also would not tolerate outside groups engaging in acts of harassment and threats of violence, as has also been occurring on many of your campuses.

As educators at institutions of higher learning, it is imperative that you provide your students with the tools and guidance to engage in the free exchange of ideas, even on emotionally charged issues, in a manner that affirms the values we all hold dear and rejects unreservedly that which is antithetical to those values. There is no room for anti-Semitism, Islamophobia, racism or any other form of violence, hatred or bigotry on your campuses, in our workplaces or our communities.

As employers who recruit from each of your law schools, we look to you to ensure your students who hope to join our firms after graduation are prepared to be an active part of workplace communities that have zero tolerance policies for any form of discrimination or harassment, much less the kind that has been taking place on some law school campuses.

We trust you will take the same unequivocal stance against such activities as we do, and we look forward to a respectful dialogue with you to understand how you are addressing with urgency this serious situation at your law schools.

Very truly yours,

[41 law firms, see at the the link]

Alex added this when I asked him if he approved of the letter:

Do I approve?  I would have voted to sign the letter and was surprised/disappointed to see my 800-plus lawyer firm not on the list.
However, I hope that the ““your students who hope to join our firms after graduation” sentence isn’t meant to say that the firms are threatening to forego hiring all students from those schools, since that would be too broad of a stroke.  That’s how CNN interpreted it – “Top law firms signal they won’t recruit from college campuses that tolerate antisemitism.” 
 
Surely there are students at the schools who decry antisemitism and are appalled by the actions of their fellow students and their administrations.  I don’t think they should be punished for the sins of others.  Rather, I think the burden falls on the law firms to vet the students carefully to make sure that they are hiring those that are qualified, fit into the culture of the firm, and won’t become a P.R. burden. 

I agree with Alex. Note that the statement decries all forms of bigotry, not just antisemitism but Islamophobia and other forms of racism. As a private corporation and not a university, law firms can choose any criteria they want to hire new lawyers, and that means they’re free to reject applicants who have proven to be bigots. Colleges and universities are more constrained in their hiring because, after all, even the most vile bigotry is still freedom of speech, protected by the First Amendment. But I don’t make the rules for private businesses and corporations, and if they wish they can delve into an applicant’s past and reject them if they show signs of “violence, hatred, or bigotry.”

This is going to have law students shaking in their boots. While they are free on campus to say whatever they want about issues like the war, they also know they have to live with the consequences. So in the end this may reduce the amount of hatred on American campuses. After all, money talks, especially to lawyers.  (This is not to slur the good lawyers I know!)

Give your take below. While firms can refuse people like the ones they describe, should they? This does impede their freedom of speech on campus, but of course nobody denies that freedom of speech comes with consequences.

Oberlin College sues its insurers for refusing to reimburse it for the damages levied in the Gibson’s Bakery case

August 8, 2023 • 11:00 am

Remember the fight between Gibson’s Bakery and Oberlin College in 2016? It seems so long ago, but it isn’t over yet.  You can read about it on the relevant Wikipedia page, or on the many posts I wrote about it at the time.  If you forget, here’s the summary from Wikipedia:

The case began in 2016 with an incident of shoplifting by a Black Oberlin College student at Gibson’s Bakery, and subsequent arrest of three Black students for assaulting a staff member. Students, faculty members and employees of Oberlin College protested against the bakery, alleging racism. Meredith Raimondo, the dean of students and vice-president at Oberlin College, took part in the protest, distributing a pamphlet falsely alleging racism on the part of the bakery. Oberlin initiated financial sanctions against the bakery and lent material support to protestors. The owners of the bakery sued Oberlin College and Raimondo for damages.

A jury found that the college had defamed the owner of Gibson’s Bakery and his family and awarded them $44 million in compensatory and punitive damages in 2019. The trial judge reduced the total award to $25 million due to Ohio state law capping punitive damages. The trial court also awarded the bakery $6 million for legal fees. The college appealed the decision. In 2022, the Ninth Ohio District Court of Appeals unanimously upheld the 2019 jury verdict which found that the college defamed, inflicted distress and illegally interfered with Gibson’s Bakery; the court also upheld the damages award. Oberlin College then sought review by the Supreme Court of Ohio, but that effort failed when the court declined to accept jurisdiction on August 30, 2022.

Oberlin behaved badly, defaming, lying about, and trying to damage Gibson’s Bakery, and the jury got angry, levying a huge fine.  With interest, the amount that Oberlin had to pay Gibson’s was precisely $36,590,572.48. That’s a big hit for a small school like Oberlin, and a windfall for Gibson’s (alas, two of the owners involved in the fight died during the legal proceedings).

But Oberlin had insurance through four companies:  Lexington Insurance Company of New York; United Educators Insurance of Bethesda, Maryland; Mount Hawley Insurance Company of Peoria, Illinois; and StarStone Specialty Insurance Company of Cincinnati. The College assumed that they could recoup that huge pile of damages from these insurance companies.

But not so fast: the companies are refusing to pay Oberlin, and so the College have had to take them to court. This case will go on forever! Click the screenshot below to read the National Review article about this suit, or  see a more complex post at Legal Insurrection. 

Why are the insurers refusing to pay? Because, they claim, Oberlin violated the conditions of the insurance policy. Not only are the companies balking at paying, but United Educators is refusing to renew its $25 million coverage of Oberlin, coverage that had lasted 34 years.

Here’s the basis of the lawsuit: the insurance companies claimed that Oberlin’s actions rendered reimbursement null and void. I’ve put the meat of the companies’ claims in bold:

William A. Jacobson previously noted at Legal Insurrection that a Motion to Intervene filed by Lexington in 2019 offered evidence that the company was likely planned to refuse to cover the judgement.

The company wrote in the filing that the policy at hand “potentially provides coverage in relation to ‘personal and advertising injury,’ defined to include defamation and/or disparagement in certain circumstances” but that it “excludes any such coverage if ‘personal and advertising injury’ is caused ‘with the knowledge that the act would violate the rights of another … ,’ or if the insured published material it knew to be false. Further, the Lexington policy provides coverage for punitive damages insurable by law, but only where the corresponding award of compensatory damages is also covered by the Lexington policy.”

The filing went on to note that the plaintiffs in the Oberlin case [JAC: Gibson’s Bakery] “allege that defendants Oberlin and Ms. Raimondo published material that falsely characterized the bakery owned by plaintiffs (“Gibson’s”) as being a racist establishment.”

“While such allegations potentially implicate ‘personal and advertising injury,’ plaintiffs also alleged that the statements were published with malice, were intended to injure plaintiffs’ business reputation, and were part of a purported campaign to harm plaintiffs,” the filing read. “If it is established that the defendants knew the alleged statements were false, or if the defendants knew their alleged acts would violate plaintiffs’ rights, the Lexington policy would exclude coverage for any resultant damage. Thus, Lexington seeks to intervene in order to submit jury interrogatories to determine the extent of the defendants’ knowledge in relation to the alleged publications.”

In other words, the College’s actions constituted “personal and advertising injury” that violated the rights of Gibson’s Bakery, and, in its pamphlets and handouts, published information that Oberlin knew to be false. That’s defamation that injured the bakery and was intended to do so.

Of course insurance companies don’t want to hand out such a large reimbursement, so I’m not sure if they’ll prevail in this case. But given Oberlin’s arrogant behavior and invidious actions against Gibson’s Bakery, which the jury saw as unforgivable, I can’t help but be glad that Oberlin hasn’t yet been able to recover the damages. And, in trying to do so, they’re going to have to pay even more money to lawyers.

Note too that Oberlin never issued an apology for defaming the bakery, calling it a racist establishment (not at all true), and trying to hurt Gibson’s business.

From The Oberlin Review. Photo: Talia Rose. 

h/t: DrBrydon, Michael

Trump indicted in third case

August 1, 2023 • 4:54 pm

What a sweet headline! Trump now faces four charges of trying to overthrow the election, making a grand total of 79 charges against him. Will it hurt him? Naah, but it doesn’t make him look good to rational people, either.

This is his second federal indictment, the other being the Mar-a-Lago documents case, and there’s another state indictment in NY about the hush money to Stormy Daniels. And. . . one more liable to be handed down as well: a state indictment in Georgia for interfering in the election. The DA there said she was “ready to go”.

Click to read from the NYT:

An excerpt:

Former President Donald J. Trump was indicted on Tuesday in connection with his widespread efforts to overturn the 2020 election following a sprawling federal investigation into his attempts to cling to power after losing the presidency to Joseph R. Biden Jr.

The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington.

It accuses Mr. Trump of three conspiracies: one to defraud the United States, a second to obstruct an official government proceeding and a third to deprive people of civil rights provided by federal law or the Constitution.

“Each of these conspiracies — which built on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting and certifying the results of the presidential election,” the indictment said.

The indictment said Mr. Trump had six co-conspirators, but it did not name them.

The charges signify an extraordinary moment in United States history: a former president, in the midst of a campaign to return to the White House, being charged over attempts to use the levers of government power to subvert democracy and remain in office against the will of voters.

You can  read the indictment here.

This is an extraordinary moment in American political history. The only thing I can compare it to during my lifetime is the run-up to Richard Nixon’s resignation from the Presidency.

 

Supreme Court rules against affirmative action at Harvard and UNC

June 29, 2023 • 9:45 am

You didn’t have to be a genius to predict this one, especially if you paid attention to the Justice’s statements during the hearing. By a vote of 6-3, and strictly along political-spectrum lines, the Supreme Court struck down race-bace admissions at Harvard and the University of North Carolina. The three dissenting justices were Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor, with the majority including Chief Justice John Roberts and associate justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

Click to read, though I found a partial version of the article archived here. It’ll be interesting to read the full decision, to which there’s a link below.

The Supreme Court on Thursday ruled that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, curtailing affirmative action at colleges and universities around the nation, a policy that has long been a pillar of higher education.

The vote was 6 to 3, with the court’s liberal members in dissent.

The decision was expected to set off a scramble as schools revisit their admissions practices, and it could complicate diversity efforts elsewhere, narrowing the pipeline of highly credentialed minority candidates and making it harder for employers to consider race in hiring.

More broadly, the decision was the latest illustration that the court’s conservative majority continues to move at a brisk pace to upend decades of jurisprudence and redefine aspects of American life on contentious issues like abortion, guns and now race — all in the space of a year.

The decisions, though coming down to the same thing, apparently differ in the methods that the judges saw as discriminatory.  UNC didn’t use the “holistic” admissions procedure at Harvard, which the school defended vehemently (as did two appellate courts), but which used bogus “likeability” scores to discriminate against Asian Americans. (That these were mendacious was revealed by showing that the lower scores of Asians were given only by admissions officers who hadn’t met the applicants, not by those who actually interviewed them in person.)

The two cases were not identical. As a public university, U.N.C. is bound by both the Constitution’s equal protection clause and Title VI of the Civil Rights Act of 1964, which bars race discrimination by institutions that receive federal money. Harvard, a private institution, is subject only to the statute.

In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The university responded that its admissions policies fostered educational diversity and were lawful under longstanding Supreme Court precedents.

The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions.

From the Wall Street Journal:

“Eliminating racial discrimination means eliminating all of it,” Chief Justice John Roberts wrote for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. “The student must be treated based on his or her experiences as an individual—not on the basis of race. Many universities have for too long done just the opposite,” he wrote.

The court’s three liberals dissented. Society “is not, and has never been, colorblind,” Justice Sonia Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson. “The Court ignores the dangerous consequences of an America where its leadership does not reflect the diversity of the People.”

Lee Bollinger, Columbia University’s president, expects five years of chaos before higher education fully adjusts to the new legal landscape, as committees and task forces—already in place at many schools—explore ways to employ income levels, socioeconomic factors and other race-neutral factors to maintain diversity.

Although long expected, the decision still was a shock to academia. “Nobody really believes it’s going to happen, even though all the evidence is right in front of you,” Bollinger said in an interview this month.

. . .But at oral arguments, several justices focused on another passage in O’Connor’s 2003 opinion, where she noted that minority enrollment had increased in the 25 years since the Bakke case.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote.

The majority opinion in that case from a generation ago, Grutter v. Bollinger, didn’t say preferences could continue until “you’re satisfied that diversity has been achieved or something vague like that,” Justice Brett Kavanaugh told UNC’s lawyer. “It said 25 years in there.”

The Harvard and UNC decisions, 237 pages long (and bundled), can be found by clicking on either of the screenshots below.  which go to one pdf:

A lot will have to change, and even though schools may be in shock, they should have expected that this would happen and prepared for it. For prepare they will, trying to find workarounds that are legal. What exactly is legal will require a close reading of the decision.

Your take?  One thing that nobody should be is surprised.

Schools are already issuing letters reassuring everyone. Here’s Harvard’s (I left off some of the signatures):