The free speech issues that have surfaced in the wake of Hamas’s October 7 attack and Israel’s response are uniquely confounding to me.  As a First Amendment scholar, my job is to draw principled, meaningful lines between protected speech and unprotected conduct.  I have spent years thinking about academic freedom for students and professors, contemplating when professors have the freedom to express controversial views and when they have strayed into punishable territory.  I believe in strong First Amendment protections and free speech values.  I have long thought “cancel culture” is real and has chilled too much speech.  But these issues and this context have presented new challenges to anyone trying to think through them in a fair-minded way. 

In this blog, I attempt to address which speech deserves protection, what that protection should entail, and how we can move forward with a commitment to protecting all viewpoints equally.  If you disagree with where I have drawn lines, please do share.

First, let me give you a few, non-exhaustive examples of free speech issues that have arisen.

• Thirty-four student groups at Harvard signed a letter, soon after the Hamas attacks, condemning Israel and blaming Israel entirely for the attacks.  A direct quote from the letter reads, “We, the undersigned student organizations, hold the Israeli regime entirely responsible for all unfolding violence.“ In response, the names of student leaders from these 34 student groups were released and the students were targeted.  Their names were displayed on a truck and several CEOs wish to blacklist them.  Some of the students were unaware that their student groups had signed this letter.  Many students who have expressed Pro-Palestinian or anti-Israel sentiment feel chilled in their speech.
  • Other students or student groups have written things more celebratory of Hamas (like the Tufts Students for Justice in Palestine), and a student at NYU Law, Ryna Workman, was fired from their job after sending a student bar association newsletter to the student body that started with “Hi Y’all” and then claimed Israel bears “full responsibility” for the attacks.  Workman was later video-taped defacing posters of Israeli hostages still in Gaza.
• An editor at an open-access, scientific journal was fired after he reposted a piece from the satirical The Onion whose headline was “Dying Gazans Criticized For Not Using Last Words To Condemn Hamas.”  The editor had a troubled history with the journal, especially related to his social media use.
• A teaching assistant at Cal Berkeley offered students extra credit for attending a pro-Palestinian walkout, before administrators said that was impermissible
• Medical professionals across the country have posted virulent anti-Israel and sometimes anti-Semitic things on social media, including that Zionists are demonic pedophiles.  Twitter accounts post these doctors’ social media statements, their jobs are informed, and the doctors and dentists are often fired.
• Professors have singled out Jews to sit in the corner, claimed that people should scare Zionist journalists and their families (with a knife and blood emoji), have tweeted that all Israelis are settlers, and have claimed to feel exhilarated by the change in the balance of power after the terrorist attacks.
• Universities who generally issue statements in the wake of major world events have stayed silent or declined to condemn the terrorist attacks.  University administrators have received significant criticism for this, and some donors have declared their desire to stop donating to elite institutions.
  • The President of the University of Pennsylvania has received significant attention because she permitted a Palestinian reading event that fostered speakers who have previously made antisemitic statements.
• Videos of students and others tearing down posters of Israeli hostages have gone viral.
• Pro-Palestinian rallies have included swastikas, anti-Semitic chants to “Gas the Jews,” and violence.  Jews had to hide in the library at Cooper Union as pro-Palestinian protestors banged on the doors.

First, let me get some easy issues out of the way. 

Tearing down or defacing posters is not free speech; that is the unprotected conduct of vandalism.  The best way for all relevant facts to reach society is to allow everyone an equal opportunity to put up posters (or reserve spots where there will be no posters).  Tearing down another’s poster censors views or facts one doesn’t like and is not permissible conduct in any speech-protective regime.  Students and others can be punished for tearing down posters.

Also, obviously, punching people and issuing direct threats are not protected by the First Amendment and can and should be punished.  The preservation of the bright line between protected speech and unprotected violence actually allows more speech to flourish.  Here, by “threats,” I don’t mean the vague and ominous but generally protected chants of, “Death to Jews,” or even swastikas held up at rallies.  Vile speech is still protected by the First Amendment.  However, threats that target particular individuals for particularized violence are not protected speech.   The professor who singled out “Zionist journalists” with the knife and blood emojis has issued something close enough to a true threat that her potential removal from UC Davis seems uncontroversial.  Indeed, if she had been permitted to keep her job, that would have created an atmosphere of fear for her students that would certainly chill speech and expression.

Now let’s get to the harder issues and some line-drawing.

First Amendment protections and academic freedom mean that students, especially students at public universities beholden to the Constitution, cannot be punished by the schools for their views.  Ryna Workman should not be investigated for their speech (they can be punished for defacing photos of Israeli hostages).  That said, the university, possessing its own free speech and academic freedom rights, should be permitted to disavow the statements and demonstrate that the statements, issued as part of a student bar association newsletter, do not form part of the university’s core values.  Certainly, Ryna Workman could be removed as student bar association president if they abused their power to express personal views not represented by the association– that  removal is not based on the content or views of the message but on not properly representing the group. 

Additionally, if Winston & Strawn wishes to disassociate itself from Workman, especially given the incoherence of their views (blaming every Israeli for a terrorist attack and then condemning Israel for “collective punishment’), that does not seem particularly detrimental to free speech values.  Private employers can fire employees for their speech [Edit- unless Workman was fired in a jurisdiction where a state statute prevents employers from firing employees for political speech, but presumably Winston & Strawn understands the legality of its action.].  Surgeons who publicly call people who support Israel Zionist scum who should be removed from the Earth perhaps shouldn’t be operating at major hospitals, where their obligation is to treat everyone equally and heal the sick regardless of identity.

The problem with “cancel culture,” is when people face excessive consequences for taking mild or moderate positions, thus chilling ranges of opinions on controversial and contested issues – like when a liberal composer was cancelled for condemning arson during the Black Lives Matter Protests.  Cancel culture is, in my view, unproblematic when people are fired (not expelled or punished by their university, which I think is wrong) for extreme or vulgarly expressed views, such as blaming Israeli babies for a terrorist attack.  I think it is reasonable to decry cancel culture while understanding that some statements are truly beyond the pale. We must be careful not to conflate all criticism of Israel with anti-Semitism while recognizing that some of it surely is.

Now let’s get to the hardest issues:

I do not support doxing or harassing students, no matter how inappropriate, scary, or poorly reasoned their views may be.   I disagree strongly with the truck going around highlighting the names and photographs of students who signed the Harvard letter condemning Israel after the Hamas attack.  School should be a place for experimenting with one’s voice. That said, the truck, unless it is inciting violence or lawless behavior (which it does not appear to be – although if it is highlighting students whose organizations signed the letter but the individual student did not participate in that decision, there could be a libel claim) also has a First Amendment right to be driving around with images on a public street.

The most difficult questions involve what universities owe to their students.  Many universities refused to condemn the Hamas murders, rapes, and hostage-taking.  Their institutional neutrality, which I generally support, seems quite hypocritical in light of the fact that they so often make statements condemning injustice, such as the murder of George Floyd or the invasion of Ukraine.  I hope universities who have remained silent on this issue decide permanently that, unless they need to disavow a student statement, they should get out of the business of issuing institutional statements.  Universities cannot represent the myriad opinions on any given issue and should be a place where students feel free to try on and explore different views.

Universities must protect their students from violence, but they cannot protect their students from the consequences of their speech, even though they cannot punish students for that speech.

Universities should be a place to really engage with facts and logic.  Universities have, especially in the last 10-15 years, done a poor job modeling how to charitably debate with one’s opponent and how to neutrally engage with issues instead of use motivated reasoning and selective use of facts to reach an ideological result.  Many of the professors universities have hired give students one-sided accounts of history and appear to teach students what to think, not how to think. Offering students extra credit for supporting a Pro-Palestinian walkout is contrary to the role of any university, especially a public one. However, these professors should not be fired now, unless they truly target students (like making Jewish students stand in a corner). Even horrifying views that every Israeli deserves punishment as a “settler colonialist” should be protected under academic freedom — although universities should really be screening professors more closely when hiring and promoting them for the rigor of their logic.

Students should receive training on how to understand multiple perspectives and engage with inconvenient facts.  Instead of consistently reaffirming a commitment to subjective notions like social justice, universities should reaffirm their commitment to teaching students critical thinking and the formation of principles that can be rigorously and fairly applied.  Now is the time for universities to protect the speech of all of their students, whether it is pro-Israel or critical of Israel, but also a time for universities to note their own hypocrisy in standing up for some vulnerable groups and not others.

I am teaching a seminar on current issues at the Supreme Court. Here are the assignments from the Syllabus, if you want to follow along. I also will have quick videos that the students will watch before class giving a little bit of background. Here is the first one.

Monday, August 28  The certiorari process:

1. Read Rule 10 of the Supreme Court’s Rules on when certiorari is granted. https://www.supremecourt.gov/filingandrules/2023RulesoftheCourt.pdf
2. Read the petition for certiorari and reply in Netchoice v. Paxton by clicking on the links here.  https://www.scotusblog.com/case-files/cases/netchoice-llc-v-paxton/
3. Choose any other petition for certiorari from this list of potentially viable petitions and skim it.  You will present it to the class, and we will discuss in class whether the petition is likely to be granted.  https://www.scotusblog.com/case-files/petitions-were-watching/

Monday, Sept 4 (no class – Labor Day)

Monday, September 11 Oral argument:

1. Carefully read the transcript OR listen to oral argument in Students for Fair Admissions v. UNC.  You can do either or both, but make sure you give this your undivided attention.  https://www.supremecourt.gov/oral_arguments/audio/2022/21-707
2. Asynchronous Assignment: 
   1. Watch the video I post.
   1. Choose two of the Justices(this may require reading the transcript unless you can recognize a particular Justice’s voice) and email me at least 225 words explaining how their questions and questioning styles differ, and how well the litigants did responding to their questions.

Monday, September 18 Briefs:

1. Read the briefs of petitioner and respondent in Great Lakes Insurance v. Raiders Retreat Realty.  You do not have to read the amicus briefs or the briefs during the stage of petitioning for certiorari.  https://www.scotusblog.com/case-files/cases/great-lakes-insurance-se-v-raiders-retreat-realty-co-llc/  Make sure you understand the legal issues and think about what strategies are being used for writing the briefs.
2. Asynchronous Assignment:
   1. Watch the video I post.
   1. Email me at least 200 words on which brief you found more convincing and why.

Monday, September 25 Supreme Court process and ethics:

1. Read the following five articles: https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/

The Supreme Court’s recusal process is its next ethical conundrum

https://www.wbur.org/onpoint/2023/05/05/who-should-enforce-a-code-of-conduct-on-the-supreme-court

Ethics rules for Supreme Court justices approved on party-line vote by U.S. Senate panel

Supreme Court clears the way for Alabama to resume executions

• Asynchronous Assignment: 
  • Watch the video I post.
  • Find something pending on the current Shadow Docket of the Supreme Court and discuss it with me in 150 words, relating it to the reading for today.  https://www.scotusblog.com/case-files/emergency/emergency-docket-2022/

Monday, October 2 Scholarship on the Supreme Court:

1. Read Supreme Court Reform and American Democracy  https://www.yalelawjournal.org/forum/supreme-court-reform-and-american-democracy

Read the Abstract and Introduction to The Remand Power and the Supreme Court’s Role

https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4928&context=ndlr

During class, we will discuss these articles in relation to what makes a good piece of law review scholarship and how to develop a thesis, so make sure you can pick of the thesis of both of these articles.

• Asynchronous Assignment: 
  • Find another piece of scholarship on the Supreme Court.  It can be recent or old.  Spend at least 35 minutes reading/skimming the article and jotting down some thoughts on what makes it a good piece of scholarship, especially in comparison to the other articles we read for today’s class.  Be prepared to present your thoughts on this article and the other articles we read to the class. 

Monday, October 9 Paper Topic Selection:

1. Decide on a particular topic that you would like to write about.  This will require several hours of research into the topic and also examining what has already been written about the topic.  Come up with a tentative thesis, which is one or two sentences, divided into subparts, that can be explored in several sections of an article.
2. Asynchronous Assignment:
   1. Watch the video I post.
   1. Email me your tentative thesis.  This does not have to be entirely ironed out, but I would like to see a one or two sentence argument about your topic.  You may change your mind later.

Monday, October 16 303 Creative v. Elenis:

1. Read carefully the full opinion, including the dissent.
2. Look over the briefs and petition for certiorari.  This can involve skimming.
3. Asynchronous Assignment:  Tell me in 200 words which side you agree with and why.

Monday, October 23 Organizing Your Paper:

1. Read the Introduction to Debunking Antinovelty and think about what makes a good organizational structure for a law review article.  https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3895&context=dlj
2. Chose a recent, published student Note that has been written about the Supreme Court and look at the organizational structure.
3. Asynchronous Assignment: 
   1. Watch the video I post.
   1. Email me 200 words on this student Note and what it is about and what works and doesn’t work about its structure.

Monday, October 30 Outlines:

1. Outline is due!  Email me your outline. 
2. Asynchronous Assignment: 
   1. Watch the video I post.
   1. Send me 100 words on the process of outlining and the strengths and weaknesses of your outline.

Monday, November 6 Amicus Briefs:

1. Read the top amicus brief for each side in Allen v. Milligan.  https://www.scotusblog.com/case-files/cases/merrill-v-milligan-2/
2. Skim the lower court opinion – a very light skim to understand the issue.  https://www.scotusblog.com/wp-content/uploads/2022/02/AL-caster-20220124-order-granting-PI.pdf
3. Read another amicus brief of your choosing.
4. Asynchronous Assignment:  Email me 200 words on the amicus brief of your choosing and how it compares to the other amicus briefs that you read.

Monday, November 13 Drafts:

1. Draft is due!  Send me the Introduction section and at least Part One of the Paper.  We will spend class looking at your drafts, comparing them with other students, and thinking about how to revise them.
2. Email me your draft by 7:00 pm Sunday night before class.
3. Asynchronous Assignment:  Email me 100 words on the process of drafting and how you think it went for you.

Monday, November 20 The Confirmation Process:

1. Watch a combined total of at least 30 minutes of confirmation hearings from at least 3 different Justices.  https://www.c-span.org/liveEvent/?confirmationhearings
2. Read the following three articles

https://newrepublic.com/article/165982/abolish-supreme-court-confirmation-hearings

https://ballsandstrikes.org/nominations/supreme-court-confirmation-hearings-brief-guide/

https://crsreports.congress.gov/product/pdf/R/R44234 (this is the longest one)

• Asynchronous Assignment:  Send me 200 words on how the different confirmation hearings differed and what surprised you about the confirmation hearings.

Monday, November 27 Paper is due!

1. Email me your paper. 
2. We will spend class reflecting on the paper-writing process, reflecting on class, eating pizza, and chatting about the upcoming Supreme Court term and forthcoming opinions.
3. Asynchronous Assignment: 
   1. Watch the video I post.
   1. Send me 150 words on how your views about the Supreme Court have changed after taking this class and how listening to your classmates has influenced you.

My time at the Taylor Swift concert requires a thesis complex enough for a law review article. Since I love a good thesis, let’s have it be this: The experience, and Taylor herself, both exceeded and somewhat failed to meet, expectations — but that is how the best, truest things often are.

Intro: The end and the beginning: the bracelets

I am writing this with six friendship bracelets jangling on my left hand, only one of which I made for myself — “overdramatic and true” from Lover, which I will eventually give to my Mom, who wanted one. I began with more bracelets, but some were given away in exchange for nothing. My favorite friendship bracelet, “loving you is Red,” was received the day before the concert from a fellow law prof who also attended the concert with her partner, although she had much better seats. I was five rows from the very top of the stadium, which I feared would make me feel disconnected from the concert, but it did not.

My second favorite friendship bracelet was one I procured from a stranger. Exchanges happened in random and symbolic ways. Looking at one girl’s stash, I chose one of the first ones I saw and absolutely loved, which was exceptionally fitting for me. It just says “IDK,” with red, green, and yellow beads, like the traffic lights in Death by a Thousand Cuts that didn’t know if Taylor Swift would be all right.

I was worried initially that exchanges weren’t happening in the fun, open, loving Taylor Swift way I expected, but then they were. For example, some girls complimented my shorts, which friends helped me bedazzle into the word “Archer,” and I bounded up several rows to exchange bracelets with the group of complimenters with them. My outfit was mostly Red Era, because Red is my favorite song (my friend made me a shirt that says “flying through the freefall”), but I had a bit of Lover, my favorite album.

Folklore is my second favorite album, and I was certainly not going to take the inevitably-needed bathroom break during that set, but luckily the friend I went with agreed to go earlier, during Enchanted. I barely knew the woman who became my friend and concert-mate, a fellow aerialist from my dance studio in Ohio, when I put up posts on social media asking if anyone wanted to see the Eras Tour with me in Los Angeles. Luckily for me, this woman is the exact opposite of me, and she believes in a form of spiritual mysticism that told her the universe was telling her to do this with me. I can be annoyingly hyper-rational, but she was absolutely my Taylor Swift guardian angel. Indeed, we knew each other so little that she thought that when my friends referred to me as professor, it was a joke, like I know things. We didn’t know each other’s jobs. But we both knew that seeing Taylor Swift in Los Angeles was something we needed to do.

She dressed as 1989, and this was her third Eras concert. She is a dedicated Swiftie. I am unclear as to whether I am a Swiftie. Like the bracelet says, IDK.

Part I: Am I a Swiftie?

I never considered myself a Swiftie. I have long casually liked her music, and the concert reminded me of all these songs I knew the words to from way back when, before Taylor Swift was a phenomenon and psychological puzzle to me, and before her lyrics moved me and changed me and became profound to me in literary ways. Now, songs like The 1 and Cardigan, and their interesting juxtapositions, have altered my perspectives on ideas like love. But I knew all the words to I Knew You Were Trouble from a time when her lyrics were just fun and catchy, and the concert reminded me of this past self, as it did for many of us. A girl sitting two seats away from me, who was sitting by herself and was crying for much of the concert, also went through phases of feeling differently about Taylor Swift. Apparently, it was not cool to like TS when she was in high school, and then it became cool again.

A few months ago, for personal reasons, I began listening to Taylor Swift much more. I became fascinated by her life and story, like many, and I listened multiple times to the outrageously excellent podcast, Every Single Album; Taylor Swift. I learned about her personal and musical evolution in ways that deepened my peripheral, glossy understanding of these topics. I wanted to know more and more. I got into the lore. I got into the cultural phenomenon. Her life is a show I was delighted to watch, and that podcast told me that if I really wanted to, tickets were accessible to me. Yes, the price was steep, but I live in Ohio and my favorite food is Kraft Mac and Cheese. I decided to treat myself.

Here’s the thing. I never wholeheartedly like anything, and certainly nothing as complex as Taylor Swift. Her songs are gorgeous and interesting and vivid, but she’s not like Bob Dylan or Simon and Garfunkel to me. I would describe her as talented, but not a genius, and I worry that we dilute society’s understanding of genius by the comparisons being made. She is not generally novel in a profound way. [Edit- many of her songs have a lyrical originality that is perspective-shifting and life-altering, and she certainly captures the inner life and emotional experience of many people, and even beautifully captures her own existence in a way that communicates something remarkable and previously ineffable and makes us all more connected to ourselves and to her.] She is a weird mix of super talented/genetically gifted/uncommonly hardworking, and also the everyman/everywoman. Whatever magic she has that got basically everyone around me at the concert to almost effortlessly know all the lyrics to every one of her songs, including the surprise songs, I wouldn’t consider it to be the kind of thing that animates the question “how many roads must a man walk down before you can call him a man,” or even “hello darkness my old friend.” [Edit: that said, I could listen to Taylor Swift music nonstop potentially forever, over and over.]

And here’s the other thing. I like Jake Gyllenhaal. I dislike that she dug up a relationship ten years dead knowing that the Internet would bully him. She seems like a good, caring person, but sometimes she appears very thoughtless. I dislike the kind of feminism that has women feeling like every loss is a slight due to their gender. I don’t like The Man and don’t agree with it. I don’t find her often positioning herself as the victim empowering.

Does calling oneself a Swiftie require worshipping her in cult-like fashion? Like the bracelet says, IDK. But a Lyft driver told me that traveling 11 hours to see her, due to plane delays, meant I was one.

A different Lyft driver, a lovely Egyptian-American man who has long lived in Los Angeles, didn’t know who Taylor Swift is, and he asked for me to write her name on a napkin. I included a number of her songs, and my professor friends with the good seats added other necessary ones to represent her oeuvre via text. This list-making was on the way to the concert, and it certainly re-invigorated my view of how exceptional she is as an artist, because I loved all these songs and many more.

Part II: The Concert

The actual concert was some combination of group singalong and dance party, people-watching spectacle, and awe-inspiring gaze at a famous person whose personality and career I find fascinating to the point of potential starstruck obsession. I don’t think I got the concert-euphoria amnesia described by some, but reviewing the sporadic videos I captured later – I wanted to also be quite present and not on my phone – made me appreciate the experience even more, so memory definitely clouds my understanding of the event.

The opening acts of Gayle and Haim were fantastic, by the way. The countdown to Taylor was exciting, and we made friends with people around us. I imagine Los Angeles has a slightly less hometown feel than other places, but it was still very open and friendly. SoFi is an incredible stadium, and I felt totally part of the action.

I didn’t memorize the setlist on purpose, but people kept cuing me to what was coming next, and when it was about to be The Archer, my friend signaled, and I noticed from the first few notes and became incredibly excited.

Let me just show you Archer, one of my favorite songs and the word written on the back of my shorts.

I wanted to follow Taylor like a sparkly princess around the stage but mainly watched the giant screens and the joyful people around me, all dressed as different eras. Some performances were so emotional to me that I had spontaneous welling up, like Marjorie, which made me think of my own, extremely different, grandmother, and like My Tears Ricochet, to which I attach personal meaning. Other moments, candidly, felt like a slog. She marches through each number, one by one, sometimes in an almost perfunctory way. I was at the very last concert on the U.S. leg for a while, and she must have been very tired of doing this. It didn’t always feel super fresh, and the concert is long. I was reminded, at times, of how her music, while quite expressive, often lacks soul. She doesn’t have this primal, raw, soulful element I get from Sam Cooke, Aretha, Amy Winehouse, or even Adele. Taylor and I have very different backgrounds, and perhaps different things move us. But she did move me quite a lot, at times. I kept wanting to know where she was on the stage.

Part II.A: Surprise Songs

Many of us knew that New Romantics would be one of the surprise songs. I now like that song in a new way. I do adore the message of embracing love and heartbreak and fighting battles together. Here I am singing.

This was never one of my favorite songs, but now it is.

New Year’s Day is not a song I love, and I was a bit heartbroken she didn’t play Cornelia Street as the second surprise song. I now have read all the Karlie Kloss lore and am of two minds about it.

Part II.B: The Release of 1989, Taylor’s Version

One reason I may not be a true Swiftie is because I am not that invested in her re-leasing albums to own her masters. It feels a bit gimmicky, another way to position herself as the underdog when her original album made her who she was, which is (deservedly) incredibly rich. I think she’s also had new opportunities to purchase her masters, but now she’s committed to the project, which doesn’t feel entirely genuine. I like listening to the old versions, and I don’t love the implied guilt in doing so. I do relish her releases from the vault.

My friend/concert-mate was extremely excited for the announcement that 1989 Taylor’s Version is coming, but I don’t love 1989. I love Taylor in fiery love, or Taylor in contemplation, which is why Lover and Folklore are my favorite albums and Red is my favorite song. I don’t love the bops as much – some of Red excepting. So, this wasn’t the moment for me that it was for others, but I do look forward to the October release.

Conclusion: The end and the beginning, again

I ultimately didn’t want the concert to end, especially not how it did. I was hoping for something extra for those of us who chose her last U.S. concert, before she shockingly announced even more U.S. dates. I wanted something more. Another surprise song. A nod. Another piece of her. I am not sure what. Perhaps part of her appeal is that she always leaves her fans wanting more of her, so accessible yet so distant.

I left the stadium in a daze, with my voice hoarse from the 8 minutes of screaming and cheering after Champagne Problems, which did not get old. It did not get old. It became a ritual to cheer for her after that song, and New York and Los Angeles had the longest cheers, and I wanted to break the record. It was such a release to cheer for so long. We were cheering for her, but we were cheering for all of us.

The next morning, at first I felt somehow disappointed, as maybe it wasn’t worth the money and travel and sleepless nights on a friend’s pullout couch and maybe the adulation was unearned. Then I watched my videos again and received another high from that unparalleled experience at SoFi. Thank you, Taylor Swift and the Swifties, for showing me incredible things.

The American Bar Association is still considering whether to allow law schools to go test-optional for their admissions decisions.  A test-optional regime does not mean law schools must stop requiring the LSAT (or the GRE) for law school admissions, but this is a likely result.  Although many law school deans are against the move to make law school test optional, they will feel compelled to stop requiring the LSAT so that their law schools can compete with other law schools who will not mandate the test.  Law schools need to attract students, and a move to test-optional is a (misguided) way of making students more attracted to law school.  Having been in legal education for a decade now, I feel quite strongly that going test-optional will be harmful for law students, for law school, for the practice of law, and for education in general.

The LSAT measures skills that are important for law students and lawyers, and for improving nuanced critical thinking, such as reading comprehension, logical reasoning, and analytical reading.  These skills can be developed with practice, and one way to amplify students’ readiness for law school is to require them to study seriously for the LSAT, where they will learn about logical fallacies and, my favorite, the contrapositive.  (I did not take an LSAT course, but even buying a not super expensive study book and ordering a few practice tests greatly improved my analytical skills.)  Students who come to law school having a base level of these skills will be much more successful, and professors can teach at a higher level for all of their students.

Further, because the test is so well adapted to reading and analysis, LSAT scores are quite correlated with law school performance and bar passage, especially at the extremes.  Below a certain LSAT score, a student is very unlikely to pass the bar, required in most states to practice law (for good reason; lawyers have a tremendous responsibility to their clients — criminal and civil — and to the courts, to perform their jobs competently).

The reasons proponents give for abolishing the LSAT (or another standardized test) requirement do not hold up to scrutiny.  First, it is true that no one test can measure a student’s aptitude, potential, or readiness.  But this is why the LSAT is used only in conjunction with other metrics.  Perhaps more significantly, there is the important issue of equity. In the aggregate, certain groups perform worse than others on the LSAT, by a significant margin.  Abolishing a good test because it yields inequitable results is a willful blindness that will compound the social problems going test-optional is trying to solve.  The inequities in education and resources that lead to diverging test results will continue to manifest throughout law school.  The problem is not the test.  To remove a standardized indicator that often helps disadvantaged students – who don’t have fancy college degrees or recommendation letters – will mean a much greater risk that law students who are unlikely to pass the bar or succeed in law school (unless the demands of law school are greatly reduced) will assume a great deal of debt as schools become needier for student enrollment. 

Equity cannot be the only value that drives decision-making.  For lawyers, who should be better at balancing interests, this seems like a myopic and scary move.  No one benefits if there isn’t a standardized way to distinguish students with greater need for academic support and those whose critical thinking and reading skills are already well developed.  No clients benefit if lawyers cannot serve them well.  This may ultimately end up creating far greater social inequities. 

Besides the LSAT, law schools could look at grades, which are heavily inflated as undergraduate institutions lower demands of rigor in order to attract students, essays, or perhaps interviews.  Any of these metrics will be far more subject to bias and will not give students the benefit of the learning they gain from studying for the LSAT.

I am writing this mostly as a warning, because I love the law, I love teaching, and I believe in students’ potential, if we challenge them and prepare them well enough.  We should not let the American Bar Association, in its single-minded zeal, create a race to the bottom where we all lose.         

I have dedicated my career to learning and teaching, to engaging intellectually, and to advancing First Amendment rights and free speech values.  I do not believe Dave Chappelle should be censored or cancelled.  I quite enjoy some of his comedy (he has some blind spots, as we all do).  I believe it is beneficial for us all to have a comedian not shy away from controversy.  But I also believe what he did was appalling and should be rebutted.  In calling “the Jews” censorious and controlling of Hollywood, and using generalizations that would not have been accepted against any other group to an uproarious audience on live television, he proved how wrong he is about Jews’ historically and exceptionally principled attitude about free speech and comedy, and how wrong he is about power and control.

Dave Chappelle’s ability to claim there are so many Jews in Hollywood in a way that was acceptable to a mainstream audience is a product, to some degree, of the progressive project to prove that any disparities in any institution, where a group is underrepresented, must be due to some sort of inequity.  (Others believe these disparities perpetuate inequities, which I agree must be true and combatted.) Certain segments of society have accepted this idea that proportionate representation is the only way that equity exists as almost gospel.  Once you accept that, its corollary must be true – that if a group is overrepresented, it must be due to privilege or something nefarious.  This is likely at the heart of much historical antisemitism, but now it is acceptable and hilarious for famous people to say it out loud. 

Jews used to change their names to succeed in Hollywood, and hide their identities, and yet they succeeded anyway.  Quotas used to keep Jews from the best law schools, yet they flourished and created their own law firms.  This could be due to a variety of reasons, partially and undeniably an intellectual culture and an abstract method of discourse learned from a young age (moving to the Midwest, I realized that method of discourse and reasoning was not universal) and a way of engaging with their religion.  Or it could be an adaptive response to millennia of being a small minority that everyone else was trying to eradicate from the planet. 

If Kanye West has claimed on Twitter that he was going to lambaste any other minority group, his contract with Adidas would have been revoked much sooner.  Yet Dave Chappelle is agitated that Jews receive any backlash against such blatant antisemitism.  It is such a perversion of the truth to say Jews stifle dissent, when the lawyers representing Neo-Nazis who wish to march are often led by Jews, guided by the principle that dialog should be open and engaged with. The Boycott, Divestment, and Sanctions issue is a complex one, because boycotts are often not actually speech but anticompetitive conduct, and much of the criticism of Israel does reflect double standards, if not antisemitism. But it is the case that many groups, including some Jews, often improperly call certain viewpoints bigoted, to the detriment of free discourse.

At a time of increased antisemitism from both the right and the left, when our institutions are – for good and for ill – trying to rewrite rules and standards to promote greater equity, and ensure that no group is underrepresented, (and thus no group is overrepresented), Dave Chappelle’s views about who benefits from power are entirely tone deaf and cheap, but we Jews will mostly tolerate them, including those on stage who had to sit there smiling at Dave Chappelle’s false prophesy.  We will tolerate them because we have engaged with the higher principles at stake, and I wish Dave Chappelle would focus on his own blind spots and do that as well.

As much as Dave Chappelle believes people cannot say what he said, I believe it’s difficult in this climate to say what I am saying.  Yet we are both contributing to an important conversation.  Dave Chappelle cannot be canceled, and I admire his bravery.  I have tenure, and I believe the ideology that has led to his monologue, while having some virtues, should also be countered as incomplete and harmful.

You have 950 words

Jim and Pam live next door to Dwight.  They all work together at the local paper company in Goldbergia.  Dwight also has his own small beet farm in his backyard, which attracts some stray animals to the area.  As a result, Jim and Pam don’t like to sit outside in their backyard with their baby because stray dogs and cats are constantly barking and hissing at them; Dwight knows this but is unmoved.  To get back at Dwight, Jim decided to play a prank on Dwight.  He lies and tells a local newspaper that Dwight eats beets for every meal and is starting to turn red.

Dwight is not amused.  He sues Jim for defamation.  Jim then brings a counterclaim for nuisance.  Assume the laws in Goldbergia approach these torts the same way other states would analyze these claims. 

1. Discuss the three state-law elements of Dwight’s defamation claim.  You do not need to include the constitutional dimension – just the three elements (assume Dwight is a private figure and negligence applies to falsity).  Which element do you think will be hardest for Dwight to prove – use a case analogy to explore that element?  What will a court do with each of these three elements?

• How will a court analyze Jim’s nuisance claim?

Answer Rubric:

1. The three state-law elements of Dwight’s claim are publication, falsity, and defamatory. 

Publication is met. Jim purposely (at least negligently) spread the information to a third party, the newspaper. 

Falsity is met at least to get to a jury if a reasonable person would believe that Dwight was eating beets for every meal and is turning red.   This is not a pure opinion or even a mixed question of fact and opinion, like in Boeheim (where falsity could still even get to a jury); whether someone eats beets for every meal and whether someone is turning red is entirely falsifiable.  It is not the kind of vague or opinion-type language that cannot be proven true or false.   Indeed, not only are Jim’s statements falsifiable, meaning they can get to a jury and are actionable, but a jury would likely conclude they are actually false (because they are).   The only issue would be whether a reasonable reader would see the statements as humorous or merely hyperbole, in which case falsity would not be met.

Defamatory will be the hardest element for Dwight to prove.  Although turning red from eating beets might be an embarrassing false fact about someone, it does not cause contempt or ill repute.  Just as in Romaine, where stating that someone was seeing people addicted to drugs, the idea that someone is simply eating a lot of beets doesn’t imply anything badly about Dwight’s moral character that would cause people to feel ill will towards him.   This case is also similar to  Cantrell, where a false light claim was brought instead of a defamation claim because depicting someone as being poor is likely embarrassing but not defamatory.

Jim’s nuisance claim will be analyzed as a private nuisance.  Jim and Pam are experiencing diminution in the use and enjoyment of their private land – the right at issue is not a common, indivisible one to the public.

The nuisance will be analyzed as an intentional nuisance because Jim and Pam told Dwight about their inability to use their backyard (Dwight is unmoved).  

An intentional nuisance has to be unreasonable to be actionable. There are two ways for a nuisance to be unreasonable:  (1) the gravity of the harm to Jim and Pam outweighs the utility of Dwight’s conduct, or (2) the harm is serious and the financial burden of compensating Jim and Pam would not make the continuation of the conduct not feasible. 

Under 1, the harm is somewhat grave because Jim and Pam can’t really use their backyard, although a jury would want to know if the animals are just making noise or if the are actually threatening to determine the extent of the harm.  The character of the harm is not super serious because it won’t make Jim and Pam sick, although society does place a high social value of people being able to use their backyards.  A jury would also want to know the character of the neighborhood; if it is generally just residential, then Jim and Pam have a better claim, although Jim and Pam can potentially just erect a fence to block out the animals without a severe burden on them.

A jury would also want to know the utility of Dwight’s conduct.  Factors to consider would be the social value – does the beet farm provide much needed produce or help tourism to the area or employ people.   A jury would also want to know if Dwight can take measures to stop the nuisance, like setting traps.   Further, if the neighborhood is residential, then Dwight’s behavior has less utility because it is not suitable for the area.

If the harm does not outweigh the utility, then Dwight will likely win because nuisance type two will be tough to meet in this case.  Having to pay Jim – or especially getting an injunction – may prevent Dwight from operating his farm because it will be a significant financial burden on a small family beet farm owner.  (If you said this would be feasible and justified it, that is fine too.)  So, unless Jim can convince a jury that this is an unreasonable nuisance because the harm outweighs the utility, Dwight is likely to win this claim, but a jury could go either way balancing the gravity of the harm and the utility (this will at least get to a jury).

To the Editor:

I am a former Climenko Fellow who loved teaching at Harvard Law School. I still have great fondness for the school, its students, and your newspaper. I now teach First Amendment Law at Dayton Law School.  I write to refute your editorial in support of the BDS movement, and specifically to refute the editorial’s analysis of the Israel-Palestine conflict, of America’s “first amendment blindspot,” and of the power imbalances at play.

The editorial, like most campus activism against Israel, is selectively critical of Israel. The editorial ignores Israel’s repeated desire to compromise with a two-state solution (including at Israel’s inception) and the Palestinian government’s continuous, fervent desire to abolish a country built by Holocaust survivors that remains a haven for a tiny minority of people still persecuted around the world.  The editorial also ignores the many ethno-states that are uncontroversial and the countries surrounding Israel where it is illegal to even be Jewish.  Sadly, the editorial sends a message to your Jewish writers (and readers) that they do not deserve to have a homeland.  You have chosen the anti-intellectual path of solidarity in ideology over the intellectual spirit of fairness and nuance that Harvard should represent. 

Your analysis of the “first amendment blindspot” with regards to Israel is also telling of the actual power dynamics at play.  As a scholar who believes in strong, robust First Amendment protections, I fully support all rights to criticize Israel. I do not believe this criticism is necessarily anti-Semitic, although a lot more of these criticisms are rooted in anti-Semitism than you acknowledge.  That said, the First Amendment rights that attach to boycotting are complex because boycotting is a coercive economic measure, not pure speech.  Further, the anti-Semitism that has increased in intensity on college campuses – often connected to anti-Zionist activism but certainly targeting all Jews – is often not treated the same way as incidents that trigger the speech-suppressive policies that administrators marshal to protect other targeted minority groups.  Your editorial ignores the chilling effects of these policies on classroom conversations on many important issues, although criticism of Israel is often a favorite topic of professors and students.  Jews are often uniquely tolerant of criticism on issues deeply connected with our identity and have also committed to the civil rights of other groups while being abandoned and often explicitly derided by many civil rights movements.    

Harvard’s past includes institutional discrimination against Jews who, despite not being wealthy, were scoring quite high on standardized tests. To limit the number of Jews so that wealthy Protestant families were not dissuaded from sending their children to Harvard, Harvard’s admissions process began to include more “holistic” factors unrelated to academic success. In the present day, the increasing ideological power of equity initiatives means that Jews, who belong to a tiny minority, will have decreasing representation no matter how much we devote ourselves to excelling at academic and intellectual pursuits. The number of Jews at Ivy League institutions has fallen. These equity movements, because they are ideological in nature, have begun to lead academic institutions down a path that is anti-intellectual, favoring some visions of justice over rigorous, fair-minded scrutiny of evidence. What has changed the mind of the editors of the Harvard Crimson does not seem to be careful study, befitting members of one of the country’s most elite academic institutions, but watching an art installation and listening to one-sided discussions. Your analysis demonstrates that what happened with this editorial was far more an act of power than it was one of reason, or even justice.

On Friday, I wrote a tweet that went viral.  The tweet engendered important, interesting debates about the rights of speakers at university events versus the rights of protesters to express opposition to the event.  People with varying views shared helpful facts and opinions on the issue.  The tweet also engendered responses on many sides from people who do not truly understand the law and certainly misunderstood the tweet.  This blog will discuss what the tweet said and will explain what the law is surrounding disruption of events on university campuses.  This blog will also consider what can be done about Twitter’s good and bad effects on public discourse.

At Yale Law School, two lawyers involved on the same side of a First Amendment Supreme Court case were hosted by a student organization.  The lawyers, from the progressive American Humanist Organization and the conservative Alliance Defending Freedom, came to discuss how liberals and conservatives can unify around free speech, a civil liberty that protects people across the political spectrum.  There are varying reports about how disruptive the event was and there is video footage you can watch.  In this video footage, some of those disrupting the event, who wished to voice their opposition to ADF’s various litigating positions, claim that they are exercising their own free speech rights to disrupt the event.

I do not agree with many of the litigating positions of ADF (although there are some free speech positions of the organization that I believe are correct).  I am a law professor who cares very deeply about the rights of the LGBTQ+ community.  As a very recent law graduate, I wrote a letter to the editor in The Washington Post, after Prop 8 passed in California, about the importance of marriage equality, long before Obergefell.  I also, as a scholar and a human being, have a firm commitment to a principled First Amendment doctrine and free speech culture.  I believe academic events at a law school where skilled litigators arguing before the Supreme Court explain their positions are essential to the learning process and open discussion.  Academic and legal norms should ensure that these events can proceed. 

I wrote a tweet which said:

“Shouting down a speaker at a designated event isn’t exercising “free speech” in the same way that punching someone whose opinions you dislike isn’t free speech. It is instead a coercive method to stifle discussion among people exercising their rights.”

Much to my surprise, the tweet went viral.  Important discussions swirled around the right to protest.  I was really pleased to see well-articulated positions on many sides of the issue.  These are necessary conversations where a variety of views should be represented.  But there was also massive anger and lecturing directed at people taking various positions.  This anger may have been projected based on people’s anger at ADF, but much of it seemed to be borne of misunderstanding, both of the tweet and of the law.

To explain the tweet, I am not suggesting that any single protester can violate the First Amendment.  Individuals cannot violate others’ First Amendment rights because the First Amendment can be violated only by the government, via legislative action, executive action, or through the judiciary via, say, defamation lawsuits.  (This is called the “state action doctrine.”).  What I was suggesting is that shouting down a speaker is not a First Amendment right itself, as some protesters seemed to claim. Uncoordinated disruptions or protesting outside of a venue is protected by the First Amendment in many instances.  Concerted efforts to disrupt a speaker at an event designed for that speaker, however, are not protected speech, meaning those disruptions can be punished by the government.  Courts have held that these efforts suppress speech.  Concerted efforts to shut down a speaker have led to arrests and prosecutions.  In general, protest is protected by the First Amendment against government punishment, but concerted efforts to shout down a speaker (if that is what happened, there are varying accounts) are not protected and are subject to punishment.  There is no forum where speech can circulate freely if the loudest voices can simply shut that speech down.  That type of coercive effort to engage in overriding speech, instead of following the rules of the forum and debating speech (or using your own platform to express your views, where other people are not permitted to shout you down), is not protected speech. 

The speakers at the event were exercising protected First Amendment rights.  They had reserved a room based on Yale Law School’s student organization policies and were engaging in protected expression, an academic discussion.  So, concerted efforts to disrupt that speech would be blocking people from engaging in protected expression (although these disruptions clearly do not actually violate the First Amendment).  Yale, a private institution, does have a policy about disrupting speakers.  The protesters, perhaps trying to follow the policy, left after the initial disruptions, although according to some reports they made it difficult for the audience to hear the speakers throughout the event.  

Again, there are varying views about how disruptive these protesters were.  Studies have shown that the more you disagree with a protest, the more likely you are to believe the protest was harmful, and vice versa.  My point was simply that if the speech was purposely intended to disrupt an event from happening or to significantly derail the event, and if it was sufficiently disruptive, it is not free speech.  It is not protected by the First Amendment.  It is instead unprotected as regulable conduct, the same way punching someone may be expressive, but it is not expression.  It is instead coercion, designed to prevent others from speaking. 

The line between when protected protest becomes criminalizable disruption is drawn by the courts, but there are factors courts look to, such as how disruptive the event was, how premeditated the disruption was, how coordinated the disruption was, etc.  Also, the law hasn’t been settled by the Supreme Court in this area, although we do know that the government is not entitled to remove speakers simply because angry hecklers are threatening the speaker.  Indeed, the government must protect that speaker in order to ensure that those with the most agitated responses to speech do not chill the free exercise of expression. 

In retrospect, I should have been even clearer about what I meant and the context of my tweet, especially on an issue this politically charged.  In a second tweet, I did note that there are disputed accounts from reputable sources of how disruptive the protests were. But the impulse of many on Twitter to react angrily, prior to understanding, is damaging to productive discussions.  Experts, especially women, who wish to express positions about topics with any sort of sensitivity are often treated to angry lectures by people who are far less informed or who do not wish to engage in true reflection on a topic.  Jews who defend robust First Amendment rights are lectured by people with no familial connection to the Holocaust about the dangers of Nazism. The cost of having any sort of platform on Twitter appears to be a lot of misdirected anger, which is fine in a way.  Exercising one’s right to speech should carry consequences.  But these consequences, on Twitter, are highly corrosive to actual dialog and may do more harm than good.

In our fast-paced speech environment, a critical number of people will not take the time or thought to read a tweet carefully or reflect upon it.  Some require little knowledge on a subject before they feel entitled to spread misinformation about the law.  Proponents of the First Amendment are attacked by conservatives as too liberal and are attacked by liberals as too conservative.  There is a real danger in assuming someone’s views based on the fact that they are willing to advocate for genuine free speech protections. 

All of this is to say that as experts are increasingly disenchanted with Twitter, because the character limit robs tweets of nuance and because people react before deeply thinking about a topic, the most inflammatory tweets by those with the shallowest views have the most impact.  This is a disturbing facet of public discourse, perhaps far more disturbing than “cancel culture.”  This react first, understand/reflect later, culture is part of the same problem that leads students to disrupt important, productive academic events before even hearing anyone’s position.  I wish there were a way to infuse more complexity and accuracy into public discourse.  If anyone has thoughts on this, please do share. 

Yesterday, my students and I discussed perhaps my favorite jurisprudential debate in the law – whether legal doctrines should generally be structured as rules or as standards. 

Rules are clear, bright-line tests that are transparently applied with little to no discretion, meaning they can be applied fairly to everyone and predicted in advance.  The age of consent, for example, is a rule.  Regardless of someone’s level of maturity (or immaturity), the age of consent clearly and predictably can be determined for each person. 

Standards allow for more individualized, case-by-case determinations that use a more amorphous test, such as whether someone fell below “the ordinary care of a reasonable person” in the negligence standard.  In most cases, juries will apply this standard on a case-by-case basis, less predictably and sometimes less fairly, as there is room for each judge or jury to exercise discretion and thus situations where like cases will not be decided alike.  This sacrifice of fairness does have the benefit, to some, of allowing individualized determinations that impart a sense of justice in each case. 

I believe everyone is either more of a rules person or more of a standards person, although some jurisprudential contexts lend themselves better to rules and some to standards.  I am generally a rules person, although much of Tort law is framed as standards.  There are exceptions.  The question of whether we have a duty to others is often a legal rule for the judge, not the jury, to decide. And when a judge dismisses a case on summary judgment, a legal rule/precedent is often set about what cannot meet the legal standard, such as behavior that does not fall below the standard of ordinary care as a matter of law and thus cannot subject defendants to liability.

Take this quiz to see where your predilections lie:

QUIZ:

• In the state of Goldbergia, the statute of limitations for filing a negligence lawsuit is three years.  Plaintiff, who may or may not have a meritorious case, becomes quite ill right before the three-year deadline and sues one day after the three years has elapsed.  What should judges do?
  1. Adhere to the deadline.  This way, all defendants can know exactly when they can have finality, and no longer be subject to suit.  Plus, the three years treats all plaintiffs fairly, regardless of circumstances, and doesn’t allow some judges to carve out exceptions that may swallow the rule.
  2. Allow plaintiff to sue.  Plaintiff missed the deadline by only one day and had a good reason.  It would be unjust to foreclose plaintiff from filing the lawsuit.

• Good grammar:
  1. Is important for maintaining precision in communication and clarity of thought, even if the rules are sometimes arbitrary.
  2. Is not necessary so long as your audience knows what you are trying to express.

• You play sports because:
  1. There are clear metrics for achievement. Although the rules may sometimes be arbitrary, everyone is treated the same and can thus compete against each other to chart their own progress.  Cheating, even if it’s a stupid rule, violates this system.
  2. It builds character and a sense of teamwork.  It’s great exercise.  You don’t always have to follow the rules if something won’t affect the outcome.

• Uber should be legally responsible for the actions of its drivers:
  1. Either never or always.  Let’s establish a clear rule so everyone understands, can purchase liability insurance correctly, and can decide their behavior accordingly.
  2. It depends.  If the driver is doing something in Uber’s best interest, and Uber represents drivers as agents even though they are independent contractors, then, in some cases, Uber should be legal responsible.  Let’s decide by looking at the specifics of the particular case.

• Describe yourself:
  1. Sometimes you can be a stickler for how things “should” be.  This doesn’t mean you are rigid or not open minded or spontaneous or fun, but you hold everyone to high standards.
  2. You’re a softie.  You’re very empathetic and try not to judge others.  We are all fighting different battles and need to be understanding of each other.

Results:

If you answered mostly 1. – Congrats and mazel tov, you are a rules person!  People will know where they stand with you, even if they don’t like it!

If you answered mostly 2. – Felicitations and wonders, you are a standards person!  You like looking at the specifics of each individualized case and will sometimes go off-route at a climbing gym.

I am a somewhat traditional law professor.  My general view is that learning the law must be primarily an academic exercise, where students develop the ability to comprehend the nuances of cases, synthesize and organize legal principles, and apply those principles to new fact patterns.  This way of learning must be supplemented, as my own legal education was, with practical training and exposure to how the law actually operates.  Last week, when visiting friends in one of my favorite cities, Philadelphia, I received some significant exposure to one police officer’s patrol beat.  This ride along was an invaluable experience for me, as a professor who teaches Criminal Procedure (Fourth Amendment right against unreasonable search and seizure, Fifth Amendment right against self incrimination, and Sixth Amendment right to counsel).  I am sharing my experience because (1) the police officer said I could, and (2) I think every resident of the United States should get a glimpse into what I saw. I learned about the typical (and atypical) job duties of a Philadelphia police officer, how assignments are apportioned, how officers handle – logistically and psychologically – homicides and shootings, and how the police view community members and other governmental actors.

The Homicide

I learned a bit before my ride along that a homicide had taken place in the early hours of that morning, so I would be fitted for a bulletproof vest.  I don’t know if that is general protocol, but I certainly felt a decent amount of nervousness heading into my ride along.  The homicide turned out to be within the special beat of the officer who graciously took me on the ride along.  He had even found a bullet casing earlier that morning, hours after the shooting that left one injured and one dead, and had to call the fire department because blood was still in the street.  He brought the bullet casing to the homicide unit before this shift of our ride along. 

During the ride along, partially to establish a presence and partially to demonstrate his job to me, the officer brought me to the street where the homicide occurred.  We exited the car, and he showed me some chalk markings in the street and explained what happened.  It was eerie and surreal to me.  The loss of life was sad and disturbing.  I thought about the man’s last conscious moments as we retraced them.  I thought about his family and the people inside the home that he stumbled to for help after he was shot. I wondered if we were safe standing on the street now.  I have lived in places where I heard gunshots on occasion, but a homicide had just recently occurred here.  Even inside the police vehicle, I felt a mix of adrenaline and fear, totally exposed, because I know that, for various reasons, now is a time of increased antipathy towards the police. 

Sense of Danger

My feeling of fear dissipated after only half an hour, however, based on the officer’s own feelings.  I asked the officer – whom I will not name because he told me he cannot and does not represent the views of the Philadelphia Police Department – if he feels afraid.  His response, without even a pause, was “no.”  Most of the members of the community on his special beat, the three-neighborhood area that he covers in grid formation, like him.  He likes them too.  I could tell that he felt at ease, and a main reason he loves his job is that he can keep the streets safe for the community and interact with residents.  In the 1.5 years since he graduated the police academy – with special crisis intervention training so that he can carry a taser – he has never pointed his weapon at anyone or even used his taser.  He is required to take out his gun to secure buildings, but he’s never used it.  Just the previous day, he almost used his taser when a man ran at him with scissors, but the man stopped, and using the taser became unnecessary.  Obviously, this is just one police

officer’s experience. Plus, this is an officer so professional and amiable that he was asked to do the ride along for a friend of a city judge.  But, the idea of police officer as constantly afraid, and therefore dangerously trigger happy, was belied by at least this one officer’s conception of himself and his job.   

The Officer’s Beat

In fact, we responded to one call about a suspicious person perhaps dealing drugs inside a corner grocery store.  The officer waited several minutes outside the store and didn’t see anyone matching the description (although we saw others), so he asked for backup (two officers are needed to enter a building) and entered the store.  Although someone was in the area of the store the caller noted – between two arcade games – no one matched the description, so the officer ultimately just left the store.  I asked if simply finding a person matching the description would be sufficient probable cause for an arrest, and the officer said no, he would need to see someone actually dealing drugs.

This officer was calm and thoughtful, answering question after question (I was super confused about the logistics of how all these calls get divided up and responded to), even as he showed me, on his patrol, bullet holes in buildings and predicted (correctly) where bullet holes would be on parked cars at the scenes of recent shootings.  “These cars should have bullets in them,” he said as we drove slowly past, and they did.  His patrol grid was in an area that saw a shooting once every couple of weeks. 

In this officer’s patrol area, there are some local gangs, divided by street, who, it seems, mostly fight over saying insulting things to each other on social media, in addition to dealing some amount of drugs.  The gangs here, unlike major gangs, are partially social, and even produce some rap music. These neighborhoods are safer than other parts of Philly, which see one or two shootings every night.  And we were on a day shift (although the officer was working overtime), so there were fewer calls.  At night, this officer’s computer monitor lights up with calls, marked with colors for how high-priority the call is.  Calls are also marked whether there might be a mental health issue requiring a crisis intervention specialist. 

Although some patrol officers cover general territory, he explained that he covers a special grid, establishes a presence there, and responds to calls in that area, like domestic disputes, suspected break ins, or drug issues – either calls where he is the primary officer on scene or high priority calls where he serves as backup.  On other shifts, he does pedestrian or traffic stops within that area; traffic stops appear to be the largest source of arrests.  Because Philadelphia is such a large city, patrol officers have different job duties than detectives, who investigate cases and mainly execute search warrants, but not every city uses this division of labor.  We drove back around to the area of the homicide, and he tried to get the attention of a resident who had asked earlier that morning if he would be returning, because she was having a barbeque later that day and wanted a police presence for safety.  We couldn’t get her attention, so we left her to barbequing.  Another woman gave the officer what appeared to be some packaged food.  She smiled and put the food right into the backseat of his squad car. 

The officer showed me a street that was bereft of activity, because, according to the officer, the feds had made many arrests there.  Many of the officers are frustrated (this is well known) with how Philadelphia’s District Attorney is handling prosecutions, and, according to the officer, the feds are coming in to perform tasks that the City may not be doing.  The biggest sources of frustration experienced by this officer related to the perception that the DA’s office was releasing arrested violent criminals, who would offend again.  Whether or not this is actually happening more than the DA’s predecessors (the DA denies this), and whether or not this is due to shoddy police work that cannot support a prosecution or whether other factors are at play, there is a huge disconnect in communication between the DA and many officers that is likely affecting morale and impeding everyone’s ability to function optimally.  The officer, in answer to my question, also believes there aren’t enough officers, and eventually, this may create a backlog as cases pile up or even become an officer safety issue.  More are being trained now, and perhaps covid held up some officers being trained.

Lessons Learned

Overall, a great number of myths were dispelled for me.  Officers – and even many residents – in areas that experience a non-trivial number of shootings can still exist and feel somewhat safe, at least in these Philly neighborhoods on this officer’s beat, because the shootings are usually targeted to particular gang members, although many bullets are fired because the shooters don’t have precise aim.  Police officers aren’t always incredibly vulnerable targets, although their jobs are scary and need support.  A decent amount of a patrol officer’s job is the proverbial “hurry up and wait.”  Some police officers are happy to share their experiences with community members and discuss their jobs; it is great that the City offers these ride alongs.  Most calls do not lead to arrests.  Oh, and the officer told me that, in his experience, women are more likely to fight an arrest than men.  Men will flee, but once they are caught, they don’t fight.        

This is just one officer’s life in three neighborhoods in Philadelphia, during a bit of a spike in violent crime that is affecting the entire country.  The officer told me I would need to do several ride alongs to really get a sense of the variety of experiences that the job presents, and I hope I can do more.  And, of course, members of the community, the DA’s office, and certainly criminal defendants, would share different stories, have markedly different perceptions, or draw different conclusions.  Still, this is all illuminating, even if I am far from making total sense of it. I can much more easily make sense of the dense, logically linear prose contained in the judicial opinions I teach, but interactions between professors and government officials like these benefit everyone, I hope.