Tina Fey’s “Sheet Caking” Bit, and Why Discourse is Breaking

The debate surrounding Tina Fey’s “sheet caking” comedy bit demonstrates some problematic  directions that discourse may be trending.

The discussions we are having as we grapple with the proper response to increasingly visible white supremacy, which many believe is condoned by the President, are critically important.  As someone who writes and teaches First Amendment and free speech culture, I think our discourse on these topics is breaking down.  I am glad that cities and universities are removing statutes honoring Confederate soldiers.  Every one of those relics, which are rightly perceived by many as honoring slavery, should come down (although not by vandalism, but by local, democratic decision-making).  I am also glad to see citizens contending with our racist history and how that history has affected our current cultural, political, and socioeconomic climate.  However, the reaction to Tina Fey’s bit evinces the tactics of perverting our First Amendment paradigm and negating someone’s views based on her identity.  Both methods are bad for discourse.

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Free Speech After Charlottesville

The deadly events in Charlottesville, where a white supremacist killed Heather Heyer and injured several others after a Unite the Right rally, have created a free speech reckoning for many, myself included.  After much thought, I have landed on the following ideas as ways forward.

Let’s not abandon viewpoint neutrality.  In an age where our President seeks to uncover the identifies of those who visit a website that coordinates protests against him, our First Amendment protections are more important than ever.  Indeed, in these dark times, our uniquely robust free speech protections are one of the few things that make me proud to be an American.

Unlike other countries, this country was built on the idea that the government – including public universities – cannot discriminate in the allocation of rights and benefits based on viewpoint.  Even “hate speech” is constitutionally protected in this country, and we should educate those misinforming people about their rights.  Universities cannot discriminate against student groups who wish to host speakers with offensive views, and cities and states cannot refuse to allow rallies based on the ideology of those seeking to march.

Let’s draw clear, principled lines between peaceful protest and violence and intimidation.  Of course, Charlottesville complicates these truths.  White supremacists holding torches, perhaps purposely emulating a lynch mob, create an atmosphere that doesn’t feel like a peaceful protest.  If protests are intended to create fear of violence, they can be restricted, although I do not think the Unite the Right rally met this high standard.  The Holocaust survivors in Skokie likely felt threatened as well by neo-Nazis bearing the swastika, the symbol of the death of their relatives.  The First Amendment requires an objective metric for when something is a threat – and an intent to intimidate.  That said, many of these protesters in Charlottesville came armed with guns or sticks.  The First Amendment guarantees the right to peaceful protest, but does not allow violent or destructive rallies.

Other public universities and cities are now cancelling rallies that appear similar to the one that occurred in Charlottesville.  These issues will likely end up in court.  My current view is that white supremacists, or White Lives Matter folks, or those opposed to increased diversity measures or immigration (I have trouble understanding the ethos of some of these rallies, which are a mélange of hard core and softer core white supremacists)  retain the right to peacefully protest.  They must demonstrate, however, that they encourage a peaceful protest.  Texas A & M has cancelled a rally because the organizers advertised the rally as “TODAY CHARLOTTESVILLE TOMORROW TEXAS A&M.”  Given that billing, the decision to cancel the rally over safety concerns may be constitutional.  Incitement requires an intent and likelihood to provoke imminent violent action.  Calling for a repeat of a deadly rally may, indeed, meet this standard, although I am loathe to lower the high bar for incitement.

Let’s not simplify the narrative.  A major problem, from a First Amendment perspective, is that the Unite the Right rally did not happen in a vacuum.  Without drawing a false equivalence between Nazis and those opposed to Nazis, we should recognize that a counter-movement, which is explicitly violent in its ideology, has assaulted white supremacists when they attempt to peacefully protest.  The Anti-Fascist movement, which originated in Europe – where they do not possess our free speech traditions, has popularized the “Nazi punch” and derided the First Amendment rights guaranteed to all of us.  Anti-Fascists create violent, destructive riots that have shut down not just white supremacist rallies, but peaceful university speakers whose ideas or methods they find offensive.  Prior to Charlottesville, when universities and cities cancelled events due to fears of violence, it was often because the localities expected a much larger, more violent counter-protest movement than any disturbance the alt-right would bring.  Not surprisingly, the white supremacists now come armed to these protests (more so than previous protests), and clashes between white supremacists and anti-fascists are overwhelming the police’s ability to keep the peace.

Nazis and Anti-Fascists are not the same, for many reasons.  Indeed, it’s hard to compare any evil to Nazi-ism and white supremacy.   A white supremacist just killed an innocent woman.  But we should remember that any group espousing violence as a tactic for dealing with offensive ideas is a danger to our free speech protections and culture.  We should condemn anyone who wishes to engage in violent behavior in response to peaceful protest, or to shut down or assault speakers trying to communicate.  The ideology of the anti-fascists is hypocritical and unsustainable, and has perhaps added legitimacy to the white supremacists’ misguided feeling of victimization.  The Anti-Fascists represent “the heckler’s veto,” but a listener’s violent response to speech is not justification for silencing a speaker.

Engage with those with whom you disagree, and reconsider heavy handed tactics like firing and shaming for those who aren’t actual white supremacists.  There are many actions we can take in our daily lives to undermine the extreme polarization and violence plaguing our protest culture.  For one, we should condemn all extremist, violent ideologies.  Violence destroys pluralism, which allows for a variety of approaches to life so long as they do not case physical harm to others.  To the extent that white supremacy is an inherently violent ideology, it is the worst contributor to our country’s current climate and should be treated as such (not to mention that it is hateful, harmful, ignorant, shallow, simplistic, ahistorical, and, well, insane).

Aside from condemning the most extreme among us, we should avoid contributing to polarization.  When someone writes a memo, or expresses a view, stereotyping women, we should engage with that person instead of firing him.  We should not say that there is no room in a company for those who have different views about gender, so long as that person can treat individuals equally.  We should listen to those with views that are not totally hateful but are outside of the mainstream, instead of marginalizing them further.  Hate is taught, but it is taught in many different ways.

Think before blaming the ACLU.  The American Civil Liberties Union made the correct choice to demonstrate its commitment to nonpartisan civil liberties by representing the white supremacists who wished to march in Charlottesville.  The ACLU has been criticized for its choice.   Those claiming the ACLU has blood on its hands, or is now allied with white supremacists, have a myopic and dangerously perverse perception of what free speech requires.  However much people wish it were not so, the ACLU has always committed its resources to ensuring that the most odious members of society retain their constitutional rights.  If the ACLU became just another organization advancing a partisan agenda, it would lose its credibility, integrity, and power.  The exercise of civil liberties is supposed to be unpopular.  Civil liberties are necessary because the democracy, and the popular will, would prefer to erode them to improve social welfare.  Individual rights exist despite the common good – because certain fundamental rights cannot be taken away regardless of popular will.

To maintain our First Amendment protections, even as our county devolves into violence and hate, would be an important victory.  Free speech is not an easy right, and it is certainly not free, but it an essential component of liberty, and of the equality for which we should continue to strive.

Edit: The Vice documentary on the rally is worth watching. The video is extremely disturbing and sad, so be prepared. This is excellent journalism.

How Google (and Academia) Should Reconcile Inclusion Efforts with Viewpoint Diversity

A Google employee was fired on Monday for internally circulating a memo about how differences between men and women contribute to gender disparities at the tech company.  The ten-page memo contained fairly insulting gender stereotypes, such as women are less adept at handling stress, and men are more willing to dedicate long hours to their work in order to achieve higher status.  However, the memo was more measured than I expected from the reporting and outcry. Its author, James Damore, acknowledged the effects of sexism and the need for workplace diversity, but spoke out against the extent and unfairness of Google’s inclusion efforts and subconscious bias training.  He condemned “using stereotypes” (perhaps in individual application), but examined average traits distributed in the population.  The memo, although not convincing or well-executed, was, at the very least, correct about one thing:  A culture of shaming certain views, even moderate views, does exist in many important institutions.  Google’s dramatic step of firing Damore went beyond that shaming.

Google’s heavy-handed punishment, in the name of inclusion, actually undermines a critical purpose of gender and racial inclusion efforts.  One of the benefits of diversity — a benefit I have seen first-hand in the classroom — is that diversity exposes others to different viewpoints, backgrounds, and perspectives.  Google has instead impressed upon its employees that everyone must have, or must appear to have, hegemonic views about nature versus nurture in the gender debate and must advance the same explanation for gender imbalances in a tech company.  There are better ways to reconcile inclusion efforts with true viewpoint diversity; the two concepts needn’t be at odds.  Below, I will detail some possible approaches.

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The Rule of Law and the First Amendment

A friend recently mentioned to me that he likes a legal journalist because she makes Supreme Court cases “accessible.”  I bristled at this word.  Although the public should understand the happenings of the judiciary, accessibility exists in tension with an appreciation of the rule of law.  Accessibility is deceptive.  A depiction of the Court that is easy on the layperson often requires removing legal jargon (or, the actual law) and glossing over the technical aspects of cases.  The sometimes meandering course of precedent is usually also simplified (I recall how in Citizens United, the narrative became that Citizens United overruled precedent, but that recent precedent had also broken new ground from previous precedent).  Supreme Court cases, argued by the best advocates and often involving the most difficult issues, cannot be rendered truly accessible without distorting the complex doctrinal edifice underlying the case and the nuanced, high-level arguments of both sides.

What remains, then, is mostly a discussion of the results of a case.  As a consequence, the public focuses on this result – the political or social ramifications of any case.  It’s no wonder that the judiciary has become increasingly politicized.  Many factors have contributed to our viewing of Supreme Court Justices as America’s royalty, but I believe that the way cases are presented to the public has enhanced this social problem.  When Justice Gorsuch claimed that he believes judges should not make law, and that a good judge must often issue decisions with which he disagrees, many were skeptical of both his sincerity and the propriety of the underlying ideal.  Perhaps this skepticism is well-founded, but it is pernicious.  One important fix for our rule of law crisis is the First Amendment.

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Sexual Assault and “Internet Vigilantism”

I remember learning in my Securities Regulation class in law school that, in securities fraud cases, securing a conviction or civil penalty against a company was somewhat beside the point.  Simply bringing accusations or filing a complaint against the company was enough to tank the company’s stock, regardless of whether the allegations were true.  The ability to secure this victory without having to prove anything armed prosecutors with a dangerous power, I thought.

I am reminded of this dynamic again after watching Beth Stelling’s Netflix comedy special.  After viewing her very funny, clearly feminist, totally fresh routine, I googled her.  On the first page of search results are her accusations against her ex-boyfriend, fellow comedian Cale Hartmann, of physical and emotional abuse and rape.   Stelling never names Hartmann, but her partner, comedian Sam Morrill, outed him on Twitter the day after her Instagram accusation.  I saw the pictures of bruises she posted.  I then read Hartmann’s denial of the accusations and listened to another victim, Courtney Pauroso, discuss on a podcast her own alleged rape by Hartmann when she tried to break up with him.  I read the polarized comments about the events.  I researched how rape survivors, not wanting to seek recourse in the criminal justice system (for a variety of reasons) often turn to Internet vigilantism to shame their attackers, and it often works.  The sexual harassment accusations against African American poet Thomas Sayers Ellis were described as a “lynching.”  Cale Hartmann’s career is basically dead, and almost everyone in the comedy community has turned against him.  Neither Stelling nor Pauroso ever filed charges against him, and he has never been prosecuted for a crime.

I want to use this space, and this case, to discuss the extremely complex issue of Internet vigilantism in sexual assault and harassment cases – both the propriety of using the medium and how the responses to it reveal defects in our ability to discuss nuanced issues on the Internet.  I have mixed feelings about most of this and simply want to open a discussion on the topic.  All comments are welcome, but please be respectful, as these events involve real human beings, not simply Internet avatars.

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No One in the Ring Has Clean Hands: CNN and the Anatomy of Politics by Meme

The battle between a Reddit user and a famous news organization, with Donald Trump’s reputation as the prize, has left our nation reeling.  All of the elements for a great wrestling drama are present, except that everyone is playing the heel.  Indeed, the closest thing to a protagonist is HanA**holeSolo, an anonymous Reddit user fond of posting racist and anti-Semitic content, who issued what may have been a forced apology to prevent CNN from exposing his identity.  This blog chronicles the events from the past few days.  I identify what is and is not problematic, from the perspective of both our First Amendment rights and notions of free speech values – the values that best foster open, productive dialog.

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Disingenuous Invocations of “Free Speech”

My favorite thing about this country is its exceptional First Amendment.  No other country affords the degree of protection that we do to political speech, artistic speech, and even offensive, hateful speech.  The current Supreme Court is doing its job in protecting our counter-majoritarian First Amendment liberties as against government intervention.  Outside of the courts, however, the term “free speech” is losing its cultural power.  Disingenuous invocations of free speech, by members of both the political right and the political left, are turning an apolitical idea into a partisan buzzword.

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What Justice Gorsuch’s Dissent in Pavan Means for Masterpiece Cakeshop

Part One in a Series on Masterpiece Cakeshop 

On Monday, certiorari was granted in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The same day, Justice Gorsuch dissented from the Supreme Court’s summary reversal in Pavan v. Smith.  Because Pavan involves the treatment of same-sex spouses on a child’s birth certificate, many concluded that Justice Gorsuch would also rule against the same-sex couple in Masterpiece Cakeshop.  That case, Masterpiece Cakeshop, concerns whether a Christian baker has a First Amendment right to refuse to bake custom-designed cakes for same-sex weddings.

Much has been made of Justice Gorsuch’s dissent in Pavan v. Smith, and how it means Justice Gorsuch will be unsympathetic to gay rights in subsequent cases.  However, there are reasons to think that nothing can be gleaned from Justice Gorsuch’s dissent in Pavan, a Fourteenth Amendment case where Justice Gorsuch’s ruling may be more about the scope of Supreme Court review than anything substantive.  Below, I tackle both positions: that Justice Gorsuch’s dissent in Pavan means almost nothing about how he will rule in Masterpiece Cakeshop, and that it means almost everything.

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The Lawsuit Against John Oliver, and the Problem with Getting Your Views from Comedians

The CEO of Murray Energy, Bob Murray, has filed what appears to be a baseless defamation lawsuit against John Oliver, for a segment Oliver ran on Murray and his coal company.   Murray, in his complaint, accuses John Oliver of not “fairly characterizing the evidence” and of intentionally omitting information.  Neither of these charges satisfies the legal basis for a defamation lawsuit.  To win, Murray would have to prove that Oliver not only stated facts that are false (or stated opinions based on implied false facts), but that Oliver acted with reckless disregard for the truth.  This “actual malice” high standard applies to plaintiffs who are public figures, a category into which Murray likely falls due to his status as a business leader.

As has been well covered elsewhere, Murray’s complaint is likely meritless and objectionable, perhaps an attempt to chill speech or harass Oliver.  But, perhaps not.  There are lessons we can and should learn from this lawsuit, regardless of its underlying legal validity.

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Twitter and the Marketplace of Bad Ideas

This week, the Supreme Court held that there is a First Amendment right to access websites like Twitter.  The state of North Carolina is not permitted, therefore, to ban those on the sex offender registry from posting on sites like Facebook and Twitter.  This is a victory for free speech rights, especially in an era in which, as the Court notes, cyberspace is the locus of so many important conversations.   But how has Twitter shaped these conversations?

Like the comments section of websites (where society’s mantra has become “don’t read the comments”), many Twitter users respond reflexively, angrily, and simplistically to the weighty, complex issues of the day.  Even politicians at the highest levels condense nuanced issues into a small number of characters and appeal to the lowest common denominator to garner likes and retweets.  Some of  the worst effects of Twitter, however, are on those whose norms and pursuits should run exactly opposite to what Twitter encourages.  I want to briefly catalogue the ways that Twitter creates perverse incentives for academics.

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