Month: May 2017

We Are Becoming a Nation that Responds To Ideas with Violence

May has been a disheartening month for the critical notion that speech is not violence – and thus violence is never justified against speech.   We began the month with news that a feminist philosophy professor was bullied by other scholars, until a journal issued a statement of regret for publishing her peer-reviewed article, because many believed her ideas perpetuated “violence.”  Greg Gianforte assaulted a reporter for bothering him with questions about health care policy, and then became a member of Congress.  Universities continued to deny speakers invited by their student groups access to their campuses, for fear of violence from both supporters and opponents of the speaker.  Bret Weinstein, a biology professor at Evergreen State College, was told by campus police to leave campus for a few days due to concerns for his safety.

There are so many worrisome developments happening in our country and abroad.  Just in the early hours of today, we laughed at a President who, unable to be checked or controlled, cannot manage to edit statements on a public platform.   There are racist and hateful incidents of violence perpetuated on trains in Portland and near the presidential palace in Kabul.   But with the concrete, we must deal with the abstract.  One development that is most worrisome for the soul of our country is that we are becoming a nation that increasingly responds to ideas with violence.

I write this not to assign blame.  We are all responsible, in myriad ways.  Right now, those who equate speech with violence remain in the minority – just as those willing to behave violently for a variety of reasons remain in the minority.  I write because this problem will only get worse unless we re-examine our values, our responses to those with bad values (even those in power), and our unique First Amendment traditions.  This is a problem borne of fear, of polarity, and of intolerance.

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Democracy, Free Speech, and the GOP

After Greg Gianforte criminally assaulted a reporter from The Guardian, some members of the Republican Party denounced his actions.  Gianforte apologized.  Alarmingly, many of his supporters seemed to understand his actions, accepted his apology, and distrusted the media’s accounts of the incident.  Gianforte’s spokesman attributed his actions, in part, to badgering by a “liberal journalist.”  House Speaker Paul Ryan, true to form, criticized Gianforte but did not ask him to drop out of the special Congressional election.  Buoyed by early election results, Gianforte won his state’s seat in the House of Representatives.

The acceptance of Gianforte by many Republicans, and the GOP’s mass acceptance of Trump despite his authoritarian, illiberal tendencies, show disdain for the values of free speech and democracy that fuel our nation.  The First Amendment is safeguarded by the courts against majoritarian impulses to stifle speech.  However, a culture of dismissing free speech values is almost as corrosive to free speech as government censorship.  What the GOP is doing, by doing almost nothing to condemn Trump’s attacks on the legitimacy of the media and Gianforte’s literal attack of the media, is harmful to our democracy.

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The Worst First Amendment Myths on Twitter (Part Two)

In the short run, the marketplace of ideas does not always sort out truth perfectly.  Indeed, many false statements and bad ideas continue to propagate in diverse, fairly open free speech communities such as Twitter.  Some of the worst offenders, unfortunately, are politicians, as Part One’s installment on Donald Trump and Howard Dean demonstrated.   This installment tackles Portland Mayor Ted Wheeler’s tweets that the government should not issue rally permits to those who he (perhaps rightly) believes peddle hate speech – and exposes those who endorse his legally and philosophically incorrect views about the First Amendment.

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President Trump’s Travel Ban and His Campaign Statements (A Series)

Part One: Fourth Circuit Divides on Use of President Trump’s Campaign Statements in Travel Ban Case

Yesterday, the en banc Fourth Circuit majority affirmed the injunction against President Trump’s Executive Order 13780.  This executive order, the second iteration of its kind (EO-2), places a temporary ban on travel to this country from individuals without visas from six nations with majority-Muslim populations.  Ten judges held that the district court’s preliminary injunction should stand, finding EO-2 likely unlawful under either federal statutes or the Establishment Clause, with three judges dissenting.   However, only seven of the thirteen judges explicitly considered Trump’s statements made prior to his election.   Plus, four of the judges (one in concurrence and three in dissent) explicitly held that it is not proper for the court to consider statements made by an unelected official in determining the validity of EO-2.

The Supreme Court will likely have the final say on whether Trump’s campaign statements can be considered when assessing whether EO-2 violates the Establishment Clause.  Although the Supreme Court has acknowledged legislative purpose in the Equal Protection context by looking to the ways a proposed law is advertised, the Court has never considered whether an unelected official’s campaign statements can be used later to invalidate his official actions.  Using an unelected individual’s campaign statements to  invalidate his government behavior may have a deleterious effect on public debate.   This series will explore whether judges should consider Trump’s campaign statements in assessing the legality of EO-2 – both as a matter of sound constitutional jurisprudence and as a way of protecting the free speech values implicated by public debate.

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Richard Spencer’s Biceps (and why his legal ability to maintain them matters)

Can’t a neo-Nazi go to the gym in peace? This is not a rhetorical (nor a sarcastic) question, but one that implicates our civil rights, civil liberties, and cultural values and meta values.  The legal answer is that a gym may generally terminate the membership of one of its patrons for political reasons.  However, the gym also has the prerogative to continue the membership.  No gym can be required to terminate Spencer’s membership.  The cultural answer, I hope, is that some gyms do allow Richard Spencer to continue to use their facilities.

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Resolution of Timothy Piazza’s Death Cuts to the Heart of Our Legal and Social Identity


The factual details of a Penn State student’s death, after he deteriorated for twelve hours from skull and spleen injuries before his fraternity brothers called an ambulance, are haunting.  Resolution of the legal and social issues is more complicated.  How judges and juries handle this case will ultimately require determinations of who we are as a society, what choices we have, and how much we should be punished when we fail others in the most serious way.

There are no simple answers here, mostly hard questions.  But we must see clear to avoiding overly punitive measures while confronting the dark pathologies that contributed to Timothy Piazza’s death.  The gruesome, unforgettable images from this case have caused me to reconsider my own views on interlocking issues such as the role of the criminal law in shaping social behavior, anti-hazing measures, video surveillance, and personal responsibility.

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The Resistance and the First Amendment




Yesterday, artist Robin Bell projected the text of the Emoluments Clause of the Constitution onto President Trump’s International Hotel in D.C., along with the message “Pay Trump bribes here.”  The hotel staff asked Bell to remove the projection, and he did, for the fifth time.  Last week, reporter Dan Heyman was arrested for “willful disruption of government processes.”  Heyman’s attempts to ask Health and Human Services Secretary Tom Price a question about health insurance for victims of domestic violence were categorized as “aggressively breaching” Secret Service agents.  (Heyman was not asking questions of Price at an organized news conference, because Secretary Price was not giving the media access to his trip to the West Virginia state Capitol.)  Before Trump was elected President, people vandalized Trump campaign signs, some committing other crimes in the process.

Although many actions of protest against Trump involve peaceful speech that is protected by the First Amendment, others are clearly unprotected, disruptive conduct.  Light projections onto others’ property are likely not protected speech, although whether they constitute a trespass or a nuisance divides the courts.  Vandalism is a criminal act.  Not only is vandalism not protected speech as against government restriction, but vandalism against campaign signs is used to forcefully negate the protected, political speech of private individuals.  Interfering with the duties of Secret Service agents, even in the name of journalism, is not protected activity, although Heyman’s actual interference here is questionable.  The President should give reporters extra leeway, if not in the name of actual First Amendment rights, then for free speech values.  (If the President is targeting reporters to silence them, that would likely be unconstitutional.)

What many are celebrating is, ultimately, unprotected activity designed to either protest Trump or expose the misdeeds of his administration.  The question then becomes:  how should we treat this activity, given our current political climate?  The praising of some of this activity requires both an altered perspective on First Amendment rights and on the exigencies of the need to resist President Trump.  Below is just a word of caution on both fronts.

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Insurance Final Exam

If you miss law school exams, or are yearning to see what’s covered in an Insurance class, please enjoy my final exam for Spring 2017.  I will not post answers to the exam, but if you take the exam and write me separately, I will send you answers.

Insurance Final Spring 2017

Legal Frameworks and Free Speech Lenses in The Handmaid’s Tale

If you’re not watching The Handmaid’s Tale, you should be.  The Hulu series based on Margaret Atwood’s book (which I haven’t read, so I am watching fresh) does not rise to the level of profundity, creativity, grace, or elegance of the famous dystopian novels 1984 and Brave New World.  However, so far, the series has sophisticated writing, masterful acting, poetic filming, and powerful moments of tension and revelation.

A main function of dystopian fiction is to present an exaggerated form of some aspects of our society, so we gain new perspective.  As the series notes, people eventually habituate to rules and customs that seem strange at first.  Dystopian fiction forces us to reexamine aspects of our government and our culture to which we have become habituated.  The Handmaid’s Tale should be viewed with an eye to understanding our culture’s current pathologies, although its relevance to our current political climate has been overstated.

For a viewing experience more nuanced than “sexism is bad,” when you watch the show, attune yourself to issues of (1) choice versus government control and (2) language as both oppression and subversion.  Both themes have strong implications for First Amendment rights.

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Partisans Versus Contrarians: The New York Times, The Harvard Business Review, and the Orwellian Distortion of the Free Speech Debate on College Campuses

Because I love a good dichotomy, I tell my students that the world is divided into two types of people: partisans and contrarians.  Partisans feel greater certainty about their own views; they enjoy congregating around others who share those views; and they don’t scrutinize the views or tactics of their partisan cohort the way they scrutinize those who disagree with them.  Contrarians, by contrast, rebel against views that have achieved some measure of prominence; they enjoy picking apart the dominant paradigm; and they fear congregations sharing an orthodoxy of opinion.

The partisans, unfortunately, have gained ascendance in academia – and with that has come a redefinition of the nature of free speech and intellectual engagement.

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