Category: First Amendment

Stanford University tries to block student from graduating for publishing a satirical post, fails on First Amendment grounds

June 3, 2021 • 10:40 am

Here’s a pretty blatant violation of the First Amendment by Stanford University as reported by Slate. But to know how it’s a violation, you have to know two pieces of law. Click on the screenshot to read:

In short, a third-year student at Stanford Law School, Nicholas Wallace, decided to make fun of the conservative Federalist Society, some of whose members agreed with the January assault on the U.S. Capitol, by publishing some satire on a listserv:

The flyer promoted a fake event, “The Originalist Case for Inciting Insurrection,” ostensibly sponsored by the Stanford Federalist Society. It advertised the participation of two politicians who tried to overturn the 2020 election, Missouri Sen. Joshua Hawley and Texas Attorney General Ken Paxton. “Violent insurrection, also known as doing a coup, is a classical system of installing a government,” the flyer read, adding that insurrection “can be an effective approach to upholding the principle of limited government.”

Reader Paul found a screenshot of the flyer:

The Federalist society urged Stanford to formally investigate Wallace. When the school did, Stanford put a hold on Wallace’s degree and forbade him from graduating, asserting that Wallace may have violated the University’s code of conduct.  But Stanford, and especially its law school, should have realized two things, which apparently were caught by the estimable Foundation for Individual Rights in Education (FIRE), whose own statement is here.

On Tuesday, the Foundation for Individual Rights in Education sent a letter to Stanford urging the school to “immediately abandon its investigation and commit to procedural reforms to protect the expressive rights Stanford promises to its students.” FIRE pointed out that California’s Leonard Law requires private universities to comply with the First Amendment, and there is no real question that Wallace’s email is shielded by the First Amendment. The Supreme Court has held that satire, including offensive and hurtful expression, constitutes protected speech, and Wallace’s email is obviously satirical. “No reasonable person familiar with the email’s context would understand it to be sincere,” FIRE wrote, noting that it advertises an event that occurred 19 days earlier and is “laden with figurative language intended to impugn national political figures.”

(FIRE’s own statement is here.)

If you knew about the Leonard Law, and that satire is considered free expression, you’d realize that Stanford shouldn’t have even begun an investigation of permitted speech. Indeed, the Federalist Society itself promotes free speech on campus, so why is it doing this? Wallace suspects, correctly, I think, that this is pure retaliation.

But, as the NBC News ends every evening, “There’s good news tonight!”  Yesterday evening Slate updated the article with this:

Update, 9: 30 p.m.:  Stanford has concluded that Nicholas Wallace engaged in protected speech, dropped its investigation, and lifted the hold on his diploma. Wallace has confirmed that he will be allowed to graduate.

What’s especially ironic is that a left-wing school went after a student for making fun of a right-wing organization, all the while violating the freedom of speech that Stanford is required to adhere to.

h/t: Scott

Blatantly unconstitutional Connecticut law apparently prohibits blasphemy and other insults

May 21, 2021 • 9:30 am

Reader John sent me this AP article that appeared in The Indiana Lawyer about a Connecticut student arrested for publishing racist insults. That is of course a reprehensible act, but not an illegal one. The case shows two things. First, free speech protects the most odious speech, though this is increasingly being questioned. Further, Connecticut has in effect a blasphemy law that prohibits speech that mocks or denigrates many things, including religion. Click on the screenshot below to read.

The emphases are mine:

A 16-year-old student in a classroom at Fairfield Warde High School allegedly took a photo of a Black classmate and posted it on Snapchat on May 7 with a caption that included a racial slur and racist comments. The teen who made the post is white, according to the Black student’s mother.

Police in Fairfield, Connecticut, arrested the student on a state hate crime charge of ridicule on account of creed, religion, color, denomination, nationality or race. The misdemeanor dating back to 1917 has been called an unconstitutional infringement on free speech rights by the American Civil Liberties Union of Connecticut and some law school professors.

Police did not identify the student who was arrested because of juvenile offender laws. The student also was charged with breach of peace.

While it is common for students to be disciplined by school officials for such comments, police and civil rights advocates said it is unusual for students to be arrested for what they say on social media if it does not involve threats, incitement or a pattern of harassment.

Note all the categories for which “hate speech” is prohibited. In effect, Connecticut has a blasphemy law. That law is unconstitutional and, if it’s appealed, will be overturned.

In the meantime, the student has been expelled from school. As one might predict, the American Civil Liberties Union is taking a mixed stand on this, despite the declaration above that the Connecticut ACLU says that the law is unconstitutional.

While it is common for students to be disciplined by school officials for such comments, police and civil rights advocates said it is unusual for students to be arrested for what they say on social media if it does not involve threats, incitement or a pattern of harassment.

“Having racist ideas or sharing racist ideas is something that we actually protect,” said Emerson Sykes, a senior staff attorney with the ACLU’s national chapter. “Even if that viewpoint is offensive, even if it’s deplorable, we don’t want the government making the call about what’s OK to say and think and what is not. But we have limitations on that right.”

Sykes, however, said he believed school officials would be justified in disciplining the student because the Snapchat post interfered with the Black student’s right to access education.

This is what confuses me. The school is an organ of government. The First Amendment prohibits the government from punishing someone because of their speech, unless that falls into areas like subverting the workplace climate, defamation, false advertising, immediate and predictable incitement of violence, and so on. This case doesn’t seem to fall into any of those categories. So why does the ACLU say the law is unconstitutional but the government (the school) still has a right to punish the student.

A single Snapchat post doesn’t seem to rise to the level that would warrant government punishment. A school disciplining a student because of one private social media post does not represent “a climate of harassment.” Nor would it be if the post concerned religion or any of the other categories.

But if the harassment continued, either by others or by the bigoted individual, that would be a discipline-able offense. But we have real lawyers on this site (I just play one on television), so counselors should weigh in.

And the legal implications:

The racist posting comes as the U.S. Supreme Court is weighing whether public schools can discipline students for things they say off campus on social media. The case involves a Pennsylvania high school freshman’s swear-filled rant on Snapchat, posted while she was at a convenience store, over being kept on the junior varsity cheerleading squad for another year. She was suspended from the team for a year.

The court previously, in a landmark ruling in the Vietnam era, declared that students don’t shed their right to free speech when they come to school. It also held that schools retained the authority to restrict speech that would disrupt the school environment.

In my view, the single Snapchat rant, which wasn’t made in school, doesn’t “disrupt the school environment.” Were this the judgment, then anything that a student says on private media or in private speech could be said to disrupt the school environment. The bigoted student should certainly be talked to and made aware of the odious nature of what he said, but expulsion goes beyond that. And, if he does it again, well, that’s a different situation.

More:

Connecticut’s hate crime law on ridiculing has been filed at least 40 times since 2012 and has resulted in about 10 convictions, according to state court records. Critics say it appears to be one of only a few such state laws in the country. [JAC: and they should all be eliminated].

A bill that would have repealed the law died last year when the state Legislature ended its session early because of the coronavirus pandemic. The bill was prompted by the arrests of two University of Connecticut students in 2019 on the ridicule charge for uttering a racial slur several times while walking in the parking lot of a dorm. The students entered a probation program that is expected to result in the charges being erased.

If this were possible, and I lived in Connecticut, I would insult myself by posting that “Jerry Coyne is a big-nosed, money-grubbing kike” and see what happens. Or I’d get some other brave soul to do it. Hate speech is not illegal speech, as odious as it is, and in this case it seems pretty odious. But the First Amendment has decreed that such speech is, in general, protected. If you disagree, consider that, according to the Connecticut law, it’s also illegal to ridicule someone because of their religion or creed. That would make Christopher Hitchens a multiple felon! Remember his obituary of Jerry Falwell? Or read God is Not Great. 

FIRE’s (bad) speech code of the month: The University of Wisconsin at Oshkosh

May 17, 2021 • 9:15 am

Every month the, Foundation for Individual Rights in Education (FIRE), an excellent organization, names one college’s speech code as standing out for being especially egregious. And this month it’s particularly bad, for the speech code singled out is that of the University of Wisconsin at Oshkosh (UWO), a public university. State universities, of course, must abide by the First Amendment because they’re considered organs of the government.

As always, when a college simultaneously tries to promote “mutual respect” and “free speech”, it gets into trouble. Here’s how the trouble emerges at the UWO website (click on screenshot)

Here’s UWO’s avowal of nearly unlimited free speech (below) in the section on “shared principles”

The widest possible range of free inquiry and expression.

          1. The University community provides opportunities for its members to listen and be heard.
          2. Members endeavor to create an environment open and accessible to information, expression and inquiry.
          3. Members express their concerns, opinions or beliefs both publicly and privately without fear of recourse, intimidation or threat.
          4. Members respect the rights of others when they express their concerns, opinions or beliefs.
          5. Students are free to question the data, views or activities in a course on a moral, religious or other basis and to reserve judgment about matters of opinion, yet they remain responsible for meeting the learning objectives of any course in which they are enrolled

Contrast this with another “shared principle”:

An environment that is free of harassment and free of insulting and demeaning comments and epithets based on race, ethnicity, gender, religion, sexual orientation, age, disability, military status, socioeconomic status, family status or political views; and consistently enforces federal, state and university protections against discriminatory treatment yet is free from any official speech codes.

          1. Consistent with established rules and policies, all University community members encourage a sense of duty to address harassing, discriminating or demeaning comments or behaviors.
          2. Upon observing discriminatory behaviors or hearing offensive comments, every reasonable effort is made to protect the victim(s) and witness(es) from further harassment.
          3. All members act in ways that allow for a diversity of rights, opinions and cultural characteristics both in and out of the classroom.
          4. No University member misrepresents actual or suspected violations of this right for their own personal gain, advancement or other ulterior motive.
          5. Every University member is informed of applicable University policies and procedures, pursues action against violators, and informs and protects victims and witnesses.

Now the issue of personal harassment and discrimination has already been settled by First Amendment law: you cannot persistently harass an individual in the workplace, nor create a threatening or unpleasant atmosphere for them.But you don’t violate the law by “insulting” someone, and that stricture is therefore unconstitutional.

And then, after averring that UWO has no “official speech code”, it proceeds to set out one, prohibiting “insulting and demeaning comments and epithets based on race, ethnicity, gender, religion, sexual orientation, age, disability.  . . and so on. Even “political views” are protected. Does that mean you can’t say that “Your Republican views suck big time”?

Further, university members are themselves enlisted in an effort to enforce the (nonexistent) speech code, and to “allow for a diversity of rights, opinions, and cultural characteristics”. It’s not even clear what that means.

But what this does mean is that UWO’s speech code palpably violates the Constitution, and I suspect it will have to be modified. Here’s a brief video FIRE made about the issues at play. What she says is absolutely accurate according to the law.

At the FIRE rating page, UWO gets an overall free speech rating of “red”, which is the worst .  Here’s what that means:

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

And yet UWO says it’s adopted “the Chicago Statement of Free Speech.” Well, no, it hasn’t—not by a long shot.

If you click on the link below, you can quickly send your own message to UWO’s Chancellor asking the school to do the right thing. (To read more about their violation, go here.) You don’t even have to say anything, as there’s a built-in message to Chancellor, Andrew J. Leavitt:

I’m writing to you to discuss University of Wisconsin – Oshkosh’s speech codes. While a commitment to free speech is almost universally embraced in concept, many schools have official policies that restrict speech in practice. Although these policies may be written with the best of intentions, such restrictions violate students’ free speech rights and prevent higher education from achieving its full potential.

I’ve sent in mine, and you can send in yours in less than a minute. Strike a blow for freedom of speech.

Survey of free speech among Wisconsin college students gives depressing results

January 10, 2021 • 9:30 am

I don’t want to make too much of the results of this survey, as it was based on only a small and limited sample of students: 530 undergraduates at the University of Wisconsin at Madison (UWM) surveyed in 2020. And one could argue that the results are somehow biased because one of the two surveying bodies, the Tommy G. Thompson Center on Public Leadership, looks as though it leans toward the right, though not strongly so. (The other partner was the University of Wisconsin Survey Center, which is a data-collection organization that seems pretty objective.)

The upshot is that students are depressingly eager to regulate First-Amendment free speech, and generally favor regulation of “hate speech” and  government restriction of speech. The researchers also found that women are more in favor of restricting speech than are men—sometimes strongly so—and that conservatives are, in general, less in favor of restricting speech than are liberals.

The latter comes as no surprise to me given that liberals are more responsible for deplatforming college speakers, but I wasn’t previously aware of a sex difference. I suppose if I were to impute that result to anything (the authors don’t discuss it), I’d guess that women are in general more compassionate and empathic than men, and thus more in favor of restricting speech that’s assumed to create “harm.”

Click on the screenshot to go to the pdf:

I’ll summarize the results by questions asked:

A.) Hate speech.  The topic broached was “The government should be able to punish hate speech.”  The survey did not define hate speech, but that’s okay because those who oppose it rarely do.

63.2% of all students agreed (either “strongly”, “somewhat” or “slightly”, categories that we’ll use from now on), 30.5% of all students disagreed, and 6.2% had no opinion. In other words, more than twice as many students thought the government (yes, the government, not the school) should be able to punish hate speech than thought otherwise. Here’s the breakdown by sex, showing that women favor punishing more than men (74.9 % of women favor government punishing compared to 46.9% of men).

And a breakdown by politics, showing that conservatives favor less punishment.  Since this breakdown by politics is seen in nearly every question, I won’t discuss it that much. (I will highlight below the difference between men and women, which is new to me):

I suppose some people could argue that conservatives are more often to be “haters,” and that explains the result. Nevertheless, UWM is a public school and the Supreme Court, in a 2016 decision, ruled that what most people consider hate speech is protected by the First Amendment:

“[The claim that the government may restrict] speech expressing ideas that offend… strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, sex, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate’.”

In other words, the “restrictors” are explicitly violating what federal courts consider to be free speech.

B.) Hate speech #2. The question asked was “A person should be able to prevent another person from speaking if they believe the person’s speech is ‘hateful’.”

In toto, 44.9% of all students agreed, while 56.3% of all students disagreed, and 7.9 had no opinion.  Here the results are somewhat better for free-speechers, but still, almost half of students argued in favor of prevention. And again there was a sex difference: 56.6% of women agreed compared to 29.1%—a substantial difference.

64.6% of students who described themselves as “very liberal” favored the prevention, compared to 14.5% of students who described themselves as “very conservative”

C.) Racially insensitive speech. The question asked was “Should government restrict the speech of racially insensitive persons?” Note that the question is a bit ambiguous, as it could be taken to mean that all speech of bigots should be restricted, but I think it’s clear they’re referring to “racist speech.”

Here the overall result was about 50:50, or rather, 53% of the students thought that the government restriction was appropriate, while 47% though there should be no restriction. Again, we see a male/female divide, with 66.6% of women favoring restriction compared to only 43.3% of men. And there was the conservative/liberal divide: 29.6% of self-identified liberals supported speech restrictions compared to only 9.7% of conservatives.

D.) Holocaust denialism. The question asked was “Should the government restrict the speech of Holocaust deniers?” Although this kind of speech is illegal in sixteen European countries and in Israel, I strongly favor its legality, for it’s a question whose answers (and the supporting data) need to be handed down among generations. Holocaust denialism is of course legal in the U.S.

Nevertheless, 55.5% of all students thought the government should restrict denialism compared to 45.5% who did not.  Here’s a pie-chart breakdown by sex, showing what we see above—a big difference (the data are presented in different forms throughout the document, and they should have been consistent):

Conservatives were again less in favor of such restrictions than liberals.

E. Restriction of speech that discomfits others. The question asked was “Speech should not be regulated even if it makes others feel uncomfortable.” Here, an “agree” answer is in favor of free speech.

Overall,  35.7% of students disagreed, urging some regulation, while 55.3% agreed. Here we have a majority in favor of free speech. But nearly half of the women (47.6%) were in favor of regulation of such speech, compared to 26.6% of the men.

F. Restriction of speech of Climate-Change deniers. The question asked was “Should government regulate the speech of Climate Change Deniers?”  I don’t think most of us would favor government regulation of discussion of a scientific issue, even though the scientific consensus is clear.

The reserachers didn’t ask about creationism, but neither would I ban discussing the misguided ideas of creationism, as they gives us a chance to present the evidence for evolution—just as climate-change denialism allows us to present counter-speech with evidence for anthropogenic global warming. To be in favor of restriction means you’re in favor of restricting discussion of a scientific issue, even if that discussion is tainted with political bias (nearly all on the conservative side).

Again, most students (62.1%) came down on the side of free speech, but 37.9% were censorious, and that’s a hefty portion. And there was a substantial sex differential, with almost half the women but only a quarter of the men urging restriction.

On this one issue, there was not much of a difference between conservatives and liberals, as one might expect given the political connection between conservatism and climate-change denialism.

The survey went on, asking questions about whether public institutions can revoke invitations to speak if the speaker “may offend” the audience, a question about whether the government should be able to restrict biased media, whether social media should monitor and remove offensive speech, whether public schools should set aside 15 minutes of time for private prayer (a lot more agreement than disagreement here!), and whether business owners should be able to enforce their religious beliefs on others, like refusing to sell contraceptives (or, I suppose, gay wedding cakes). But I’ve already gone on too long, and will let you read the results for yourself.

A brief upshot:

1.) A  surprisingly large number of UWM students favor restriction of speech, even though most of what those restrictions violate the First Amendment.

2.) Substantially more women than men favor restriction of speech. I don’t really understand this result, and we should remember that this is a smallish sample from a single college, but if it’s general it would need an explanation. You’re welcome to advance your own hypotheses in the comments.

3.) In general, conservatives favor less restriction of speech than do liberals. Given that the nature of the speech subject to this survey’s questions was on issues where there is already a political divide, I would have liked to see a more general question about restriction of any speech considered legal under the First Amendment.

I agree with the study’s authors, who say at the end that students clearly need education about the First Amendment. They broach a number of possible solutions, including infusing courses with First-Amendment material or giving them an introduction to free speech when they arrive at college.

Given the logistic problems of the former solution, I favor a “free-speech” unit when students enter college. That would be quite fraught now, for the students might interpret this as a college telling them that it’s perfectly fine to utter “hate speech”. (Legally it is, but socially it’s not.) But there could be lively discussion of the benefits of free speech, what “hate speech” really constitutes, and so on. I think it’s best to have these discussions before college students, steeped in an atmosphere of ideological conformity, become hardened in their opposition to free speech.

Oh, I forgot to mention that UWM, as a public institution, is required to abide by the First Amendment.

NYT writer Tom Edsall: Is the First Amendment obsolete?

January 7, 2021 • 10:45 am

Writer Thomas Edsall is best known for his weekly op-ed in the New York Times, with the latest example below. It’s a long column, and not a bad one at all, even though I disagree with his conclusion that the First Amendment seems obsolete because, in the age of social media, free speech cannot promise “that factual information is guaranteed”.

Note that what is asserted in Edsall’s headline is not that the First Amendment has “wrecked free speech”, but that Trump’s lies have.  The rationale for First-Amendment free speech in America is that it ensures a “free marketplace of ideas,” and, with that in place, the assumption is that truth will Triumph. Now that’s clearly not been so obvious under Trump, because he beleaguers the American public with untruth, and many of them buy it.

Is the wrecking of the benefits of the First Amendment, then, due to the election of a fascist as President, which has nothing to do with the Amendment itself, or to social media, which allows a largely unregulated dissemination of lies? That, too, has nothing to do with the Constitution, because social-media companies like Facebook and Twitter, as private corporations, aren’t required to abide by that Amendment.  And those companies are already engaged in regulating speech in a manner that wouldn’t stand up if they were government agencies. But that hasn’t worked, either. It was social media, after all, that led to the debacle on Capitol Hill yesterday.

Another argument is that we do need to modify the First Amendment: we need to go to the European system in which some “hate speech”, like Holocaust denial and blasphemy, is banned. That doesn’t seem to have worked, either: those countries don’t seem to have less “hate” than America, and at any rate, I don’t see how banning, say Holocaust denial, is useful. In fact, I think it’s harmful, as people have no impetus for learning what the real evidence is for the Holocaust. The benefits of free speech are that you can hear the best arguments of those whose views you oppose. That was suggested by Mill, who also mentioned another benefit: if odious speech is prohibited, you’ll never learn who its exponents are.

At any rate, Edsall’s piece is fair in that he airs both sides in extenso. In fact, most of the airtime goes to those who want to keep the First Amendment intact. Yet at the end he concludes we need more regulation of speech to ensure that the truth will out. But he’s not specific about how this will happen.  I’ll give some quotes from those on different sides of the issue; Edsall has done his homework by interviewing lots of people

Arguments for Modifying the First Amendment (Edsall’s words indented; those of his interviewees further indented):

In making, embracing and disseminating innumerable false statements, Trump has provoked a debate among legal scholars over whether the once-sacrosanct constitutional protection of free speech has itself become a threat to democracy by enabling the widespread and instantaneous transmission of lies in the service of political gain.

In the academic legal community, there are two competing schools of thought concerning how to go about restraining the proliferation of flagrant misstatements of fact in political speech.

Richard Hasen, at the University of California-Irvine Law School, described some of the more radical reform thinking in an email:

There is a cadre of scholars, especially younger ones, who believe that the First Amendment balance needs to be struck differently in the digital age. The greatest threat is no longer censorship, but deliberate disinformation aimed at destabilizing democratic institutions and civic competence.

Hasen argues:

Change is urgent to deal with election pathologies caused by the cheap speech era, but even legal changes as tame as updating disclosure laws to apply to online political ads could face new hostility from a Supreme Court taking a libertarian marketplace-of-ideas approach to the First Amendment. As I explain, we are experiencing a market failure when it comes to reliable information voters need to make informed choices and to have confidence in the integrity of our electoral system. But the Court may stand in the way of necessary reform.

Of course Trump’s lies were disseminated mostly Twitter, which is free to make its own rules. It can ban some speech, as it did yesterday for Trump (but for only 12 hours), censor it, as it did yesterday by hiding three of Trump’s tweets, or ban some people for speaking, as it threatened to do if Trump persisted. It is up to these companies how they handle speech, and what they decide to censor, but I would still favor them having fairly lax restriction, as close to the First Amendment as possible. After all, there’s no law against people standing up in public and telling injurious lies. Social media can spread lies faster and more widely, but the same goes for truth via counter-speech.

More calls to reform the First Amendment:

Tim Wu, a law professor at Columbia and a contributing opinion writer for The Times, is largely responsible for pushing the current debate onto center stage, with the 2017 publication of his essay, “Is the First Amendment Obsolete?” by the the Knight First Amendment Institute and subsequently in the Michigan Law Review:

“The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly differently than today’s,” Wu wrote. The basic presumption then was “that the greatest threat to free speech was direct punishment of speakers by government.” Now, in contrast, he argued, those, including Trump, “who seek to control speech use new methods that rely on the weaponization of speech itself, such as the deployment of ‘troll armies,’ the fabrication of news, or ‘flooding’ tactics.”

But these aren’t new methods, just ones that can be deployed faster. And, as I said, Twitter, Facebook, and YouTube can counter what they see as undesirable speech via censorship or banning. The problem with that, of course, is whether we trust these companies to do the right thing. I, for one, don’t. They already are biased in how the censor anti-Israeli speech (largely tolerated) and anti-Palestinian speech (often censored as “Islamophobia”). Of course companies can do what they want, but there’s no guarantee that they themselves won’t tilt speech toward their ideological preferences. Note, too, that Laurence Tribe, below, says that every era has argued that “political speech is different from what it was.”

More:

Miguel Schor, a professor at Drake University Law School, elaborated Wu’s arguments in a December 2020 paper, “Trumpism and the Continuing Challenges to Three Political-Constitutionalist Orthodoxies.”

New information technologies, Schor writes,

are the most worrisome of the exogenous shocks facing democracies because they undermine the advantages that democracies once enjoyed over authoritarianism.

Democracies, Schor continued, “have muddled through profound crises in the past, but they were able to count on a functioning marketplace of ideas” that gave the public the opportunity to weigh competing arguments, policies, candidates and political parties, and to weed out lies and false claims. That marketplace, however, has become corrupted by “information technologies” that “facilitate the transmission of false information while destroying the economic model that once sustained news reporting.” Now, false information “spreads virally via social networks as they lack the guardrails that print media employs to check the flow of information.”

It seems to me that this “corrupt marketplace” still gives people the opportunity for counterspeech and weeding out false claims. And if the fault is “information technologies”, then what’s the solution? The technologies are here to stay, and who wants to give Zuckerberg the ultimate power over what speech should be aired?

And what happens at colleges where students, though they can’t exercise direct censorship, can still create bannings and deplatformings, and silence those who oppose them. This has created a rigid ideology in which Critical Theory gains ascendancy and no dissent is brooked. This purported attempt to eliminate “hate speech” has resulted in gutting the free discourse that is the heart of our universities.

Should we adopt the European system? (which of course means modifying the First Amendment). Nobody in the article seems to favor this.

Here’s what Erwin Chemerinsky (dean of UC Berkeley’s law school) has to say:

On the negative side, Chemerinsky noted that:

It is easy to spread false information. Deep fakes are a huge potential problem. People can be targeted and harassed or worse. The internet and social media have caused the failure of many local papers. Who will be there to do the investigative reporting, especially at the local level? It is so easy now for people to get the information that reinforces their views, fostering polarization.

Despite these drawbacks, Chemerinsky wrote that he is

very skeptical of claims that this makes the traditional First Amendment obsolete or that there needs to be a major change in First Amendment jurisprudence. I see all of the problems posed by the internet and social media, but don’t see a better alternative. Certainly, greater government control is worse. As for the European approach, I am skeptical that it has proven any better at balancing the competing considerations. For example, the European bans on hate speech have not decreased hate and often have been used against political messages or mild speech that a prosecutor doesn’t like.

Indeed; blasphemy—the criticism of religion—can still be punished in parts of Australia, as well as in Austria, Canada, Finland, Ireland, Poland, South Africa, Spain, and other countries in the West, not to mention the many Muslim countries. Granted, Western countries don’t often prosecute blasphemy, or don’t have explicit “blasphemy laws” (but can penalize criticism of religion), but the point is that if religion got into power, it could censor its critics. And I think laws banning Holocaust denialism or pro-Nazi sentiments are either counterproductive or haven’t worked. Remember too that many, many people see criticism of religion as “hate speech.” The First Amendment, however, says it’s okay. It is okay, and the ability to criticize religion is vital in dispelling a pernicious influence on society.

The problem is with advertising, capitalism, or the print media, not the social media. Some of those interviewed blamed the proliferation of lies to the failure of mainstream media (MSM) to be responsible enough to do objective reporting or on new “advertising models”. A few quotes:

Lawrence Lessig, a law professor at Harvard, was outspoken in his call for reform of free speech law:

There’s a very particular reason why this more recent change in technology has become so particularly destructive: it is not just the technology, but also the changes in the business model of media that those changes have inspired. The essence is that the business model of advertising added to the editor-free world of the internet, means that it pays for them to make us crazy. Think about the comparison to the processed food industry: they, like the internet platforms, have a business that exploits a human weakness, they profit the more they exploit, the more they exploit, the sicker we are.

Well, this seems to apply more to the Internet than the mainstream media—have you looked at HuffPost lately, though?—but it doesn’t make a lot of sense.  What does it mean to say that advertisers “profit the more the exploit, the sicker we are.” This seems to be a problem of all advertising, not just the Internet. And, at any rate, the fix for this has nothing to do with regulating non-advertising speech. Deceptive advertising is not protected by the First Amendment anyway, so what should we do: keep advertisers from “exploiting” us? Good luck with that?

A different argument from Jack Balkin, a law professor at Yale:

Balkin continued:

The problem of propaganda that Tim Wu has identified is not new to the digital age, nor is the problem of speech that exacerbates polarization. In the United States, at least, both problems were created and fostered by predigital media.

Instead, Balkin contended:

The central problem we face today is not too much protection for free speech but the lack of new trustworthy and trusted intermediate institutions for knowledge production and dissemination. Without these institutions, the digital public sphere does not serve democracy very well.

A strong and vigorous political system, in Balkin’s view,

has always required more than mere formal freedoms of speech. It has required institutions like journalism, educational institutions, scientific institutions, libraries, and archives. Law can help foster a healthy public sphere by giving the right incentives for these kinds of institutions to develop. Right now, journalism in the United States is dying a slow death, and many parts of the United States are news deserts — they lack reliable sources of local news. The First Amendment is not to blame for these developments, and cutting back on First Amendment protections will not save journalism. Nevertheless, when key institutions of knowledge production and dissemination are decimated, demagogues and propagandists thrive.

We also lack reliable sources of national news. But again, as Balkin notes, this has nothing to do with the First Amendment. It may be part of the problem, but what is the cure?

When you look at the views of First Amendment scholars I’ve admired, like Geoff Stone here at Chicago or Lawrence Tribe at Harvard, they don’t see changing the First Amendment to counter whatever problems exist—though Stone notes that, as is true with any amendment, interpretations of the courts may change over the years. These scholars, and several others, favor keeping the First as it is. Curious, then, that though the weight of cogent argument is in favor of keeping the Constitution as it is, Edsall feels otherwise (see his conclusion below):

Geoffrey Stone, a professor at the University of Chicago Law School, voiced his strong support for First Amendment law while acknowledging that Wu and others have raised legitimate questions. In an email, Stone wrote (my emphasis):

I begin with a very strong commitment to current First Amendment doctrine. I think it has taken us a long time to get to where we are, and the current approach has stood us — and our democracy — in very good stead. In my view, the single greatest danger of allowing government regulation of speech is that those in power will manipulate their authority to silence their critics and to solidify their authority. One need only to consider what the Trump administration would have done if it had had this power. In my view, nothing is more dangerous to a democracy that allowing those in authority to decide what ideas can and cannot be expressed.

Having said that, Stone continued,

I recognize that changes in the structure of public discourse can create other dangers that can undermine both public discourse and democracy. But there should be a strong presumption against giving government the power to manipulate public discourse. [JAC: I’d add “social media companies” to “government”]

The challenge, Stone continued,

is whether there is a way to regulate social media in a way that will retain its extraordinary capacity to enable individual citizens to communicate freely in a way that was never before possible, while at the same time limiting the increasingly evident risks of abuse, manipulation and distortion.

The problem is exacerbated because “regulating social media” runs exactly the same risks as “allowing government regulation of speech”, but the regulators are corporations rather than the government. If Twitter is now most people’s source of news and information, then Twitter is in fact more powerful than the government, and their own biases pose a danger to free discourse.

Laurence Tribe, a constitutional scholar at Harvard, agrees with Stone, and doesn’t think we should go to the European system:

In one of the sharpest critiques I gathered, Laurence H. Tribe, emeritus professor at Harvard Law School, wrote in an email that,

We are witnessing a reissue, if not a simple rerun, of an old movie. With each new technology, from mass printing to radio and then television, from film to broadcast TV to cable and then the internet, commentators lamented that the freedoms of speech, press, and assembly enshrined in a document ratified in 1791 were ill-adapted to the brave new world and required retooling in light of changed circumstances surrounding modes of communication.” Tribe added: “to the limited degree those laments were ever warranted, the reason was a persistent misunderstanding of how constitutional law properly operates and needs to evolve.

The core principles underlying the First Amendment, Tribe wrote, “require no genuine revision unless they are formulated in ways so rigid and inflexible that they will predictably become obsolete as technological capacities and limitations change,” adding that

occasions for sweeping revision in something as fundamental to an open society as the First Amendment are invariably dangerous, inviting as they do the infusion of special pleading into the basic architecture of the republic.

In this light, Tribe argued

that the idea of adopting a more European interpretation of the rights of free speech — an interpretation that treats the dangers that uncensored speech can pose for democracy as far more weighty than the dangers of governmentally imposed limitations — holds much greater peril than possibility if one is searching for a more humane and civil universe of public discourse in America.

Agreed. And after all this (I’m not leaving out much criticism of First-Amendment free speech), Edsall still quotes Hannah Arendt as if Edsall thinks that that Amendment still poses a problem:

In 1967, Arendt published “Truth and Politics” in The New Yorker:

The result of a consistent and total substitution of lies for factual truth is not that the lies will now be accepted as truth, and the truth defamed as lies, but that the sense by which we take our bearings in the real world — and the category of truth vs. falsehood is among the mental means to this end — is being destroyed. . .

Totalitarianism required first blurring and then erasing the line between falsehood and truth, as Arendt famously put it:

In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and that nothing was true ….

Mass propaganda discovered that its audience was ready at all times to believe the worst, no matter how absurd, and did not particularly object to being deceived because it held every statement to be a lie anyhow.

And here’s Arendt in “Truth and Politics” again, sounding like she is talking about contemporary politics:

Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute.

America in 2021 is a very different time and a very different place from the totalitarian regimes of the 20th Century, but we should still listen to what Arendt is saying and heed her warning.

Her warning is that the proliferation of lies doesn’t drive out truth so much as make people cynical about truth; it’s a reiteration of the ideology of Big Brother in Nineteen Eighty-Four.  But how do we “guarantee factual information?” I don’t see how we can do that unless someone becomes the arbiter of fact. And we know that what is seen as “fact” depends on who’s in charge. Trump, for instance, saw climate change as fake rather than fact.  And of course in science facts are provisional, as they should be.

It would be nice if Edsall would have told us exactly how we’re supposed to pay attention to Arendt. How do we heed her warning? The only recourse I see is allowing someone to determine what the facts is (like Steve Miller’s “detective down in Texas”).

Stanford’s faculty senate condemns a colleague for exercising free (but misguided) speech

January 6, 2021 • 9:15 am

Once again we have a professor who said stupid stuff—not hateful this time, but medically wonky and potentially dangerous—and was officially condemned by his University.

Hot off the press from The Stanford News (click on screenshot): Scott Atlas, a senior fellow at Stanford’s Hoover Institution—and formerly a professor and chief of neuroradiology at the Stanford University Medical Center—became a coronavirus advisor in the Trump administration, and proceeded to make a number of pronouncements about the pandemic that contravened medical wisdom.  Last Thursday he was condemned in a Stanford faculty resolution, with 85% of the faculty voting for that resolution.

So here we have the usual conflict between freedom of speech and the “harm” imputed to that speech. And once again, while condemning the speaker, I defend Atlas’s right to say what he wants without institutional condemnation.

From the report:

A resolution, introduced by members of the Faculty Senate Steering Committee and approved by 85 percent of the senate membership, specified six actions that Atlas has taken that “promote a view of COVID-19 that contradicts medical science.”

Among the actions cited are: discouraging the use of masks and other protective measures, misrepresenting knowledge and opinion regarding the management of pandemics, endangering citizens and public officials, showing disdain for established medical knowledge and damaging Stanford’s reputation and academic standing. The resolution states that Atlas’ behavior is “anathema to our community, our values and our belief that we should use knowledge for good.”

The resolution singles out for criticism Atlas’ recent Twitter call to the people of Michigan to “rise up” against new public health measures introduced by Gov. Gretchen Whitmer to curb disease spread.

“As elected representatives of the Stanford faculty, we strongly condemn his behavior,” the resolution states. “It violates the core values of our faculty and the expectations under the Stanford Code of Conduct, which states that we all ‘are responsible for sustaining the high ethical standards of this institution.’”

In approving the resolution, members of the senate called on university leadership to “forcefully disavow Atlas’ actions as objectionable on the basis of the university’s core values and at odds with our own policies and guidelines concerning COVID-19 and campus life.”

The indictment goes beyond simply damning Atlas for misrepresenting the scientific consensus in a potentially harmful way (presumably if he misrepresented continental drift there would have been no faculty resolution), but criticizes him for giving the imprimatur of Stanford and the Hoover Institution to his words. This is a common way to criticize speech: by saying that the speaker is an authority figure and puts the weight of his/her position behind the words.

In discussion, David Spiegel, the Jack, Samuel and Lulu Willson Professor in Medicine, who has been among Atlas’ most vocal critics, reiterated his belief that the university has an obligation to act because Atlas has inappropriately used his position at the Hoover Institution to give credibility to his COVID-19 positions.

“What Atlas has done is an embarrassment to the university,” Spiegel said. “He is using his real affiliation with Hoover to provide credibility in issues he has no professional expertise to discuss in a professional way.”

Yes, of course what Atlas said was dumb, and would have potentially harmful effects on those who followed his public statements. (But be mindful that there have been dissenters from the received wisdom about how to control the pandemic. Sweden, for instance, initially (and fruitlessly) sought to stem the pandemic through herd immunity—one of Atlas’s recommendations.)

But stupid pronouncements, even when made as an official of the Trump administration (and a fellow on leave from Hoover) constitute free speech. Atlas’s intent, or so he said in his response to the resolution, was neither intended to cause harm (the guy was just clueless), nor, if harmful, did it cause immediate harm. Ergo it’s free speech under the First Amendment.

And it doesn’t violate freedom of speech to make a pronouncement as an individual affiliated with Stanford. As far as I know, if I tweeted, as Professor Jerry Coyne, “Face masks are useless for preventing spread of the virus,” I would not be violating the First Amendment simply because I mentioned my position.  I might be violating a company’s regulations, or Stanford’s regulations (though I don’t know if that’s the case), but Stanford, although a private university, should not have rules that prevent free speech among its faculty.

Indeed, faculty who voted against Atlas recognized the tension between free speech and “harmful speech”, but resolved it in favor of preventing harm. It’s a case of “we favor free speech BUT. . . ”

In his comments on the issue, [Stanford] President Marc Tessier-Lavigne said he was “deeply troubled by the views by Dr. Atlas, including his call to ‘rise up’ in Michigan.” Tessier-Lavigne noted that Atlas later clarified his statements, but he said that the tweet “was widely interpreted as an undermining of local health authorities, and even a call to violence.”

Tessier-Lavigne reiterated Stanford’s commitment to free speech and academic freedom. Atlas, he asserted, remains free to express his opinions.

“But we also believe that inflammatory remarks of the kind at issue here by someone with the prominence and influence of Dr. Atlas have no place in the context of the current global health emergency,” he said. “We’re therefore compelled to distance the university from Dr. Atlas’s views in the strongest possible terms.”

No, President Tessier-Lavigne, Atlas’s misguided statements were NOT a “call to violence”, at least of the immediate and predictable kind that does violate the First Amendment. Atlas even made that clear. How a statement is interpreted by people is not important; what’s important, if you’re seeking to damn someone for free speech, is what they intended to do. 

The University didn’t have to pass a resolution “distancing itself” from Atlas, and that wouldn’t have happened at the University of Chicago. For passing such resolutions chills speech, and, as our Kalven report emphasizes, says these wise words:

The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community. It is a community but only for the limited, albeit great, purposes of teaching and research. It is not a club, it is not a trade association, it is not a lobby.

In this case the University (Stanford) is the critic, making public pronouncements so it looks good. And by so doing, it chills the speech of those faculty who would advance renegade views. Some of the faculty even recognized this:

The discussion of Atlas’ actions raised issues of academic freedom and freedom of speech, as it has in the past. Among those expressing concern about the resolution’s effect on freedom of speech and academic freedom was John Etchemendy, former provost, the Patrick Suppes Family Professor in the School of Humanities and Sciences and the Denning Family Co-Director of the Stanford Institute for Human-Centered Artificial Intelligence.

Etchemendy said that the resolution could be interpreted as suggesting Stanford faculty members have less freedom of speech rights than members of society in general.

But Etchemendy said, “As far as the statements that have been made by Atlas, as a private citizen he has the right to make those statements. I am troubled by the idea that a person who has those rights to speak and to assert certain things – however outrageous – have fewer rights to speak, given that they are Stanford faculty. I find that to be contrary to what is, I think, the highest value of the university, which is the value and promotion of free speech and open dialogue.”

I agree wholly with Etchemendy. But clearly most faculty, even if they do favor free speech and academic freedom, favor the “free speech BUT. . .” variety. One more quote:

Debra Satz, dean of the School of Humanities and Sciences, said she believes the resolution has reminded the university of the importance of leading with its values.

“In our messaging, we have sometimes been more focused on the legal issues rather than the value issues,” she said. “This brings the value issues front and center. We have been pretty good at pointing to the value of freedom of speech and freedom of inquiry, which I believe are central. But there are other values at stake. As a university, we have a commitment to push back against the undermining of expertise and knowledge. That is one of the great threats to our democracy at the moment.”

In my view (others may differ), those “other values”, which constitute misinformation—even potentially harmful misinformation—do not outweigh the great value of freedom of speech, especially at a university. Stanford should have kept its collective mouth shut.

Now you might be asking, “Well, what’s the difference between what Atlas said and false advertising, which DOES violate the First Amendment?”  After all, Atlas’s statement, like false advertising of drugs, could be harmful to people’s health.

As far as I know, commercial advertising has a bit less leeway than other forms of speech, and what has been prohibited by the courts is deceptive commercial advertising, when a firm makes claims it knows to be wrong. That is not the case for Atlas, who believed what he said. But even if he knew what he said was wrong, he should be damned and excoriated for it by counterspeech, not subject to official university condemnation. Universities, after all, should be kept as unsullied as possible by the chilling of speech, for they are places where ideas should be freely expressed and debated.

Atlas is a moron, but even morons get to say dumb things under the First Amendment.

I was going to put a poll here, “Do you agree that Stanford should have had a vote on condemning Atlas?” But I’d rather hear what you have to say in the comments, so speak up.

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

January 3, 2021 • 9:15 am

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

The skinny:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

View Results

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