Month: May 2017

The FCC’s Investigation of Stephen Colbert Likely Violates The First Amendment

After Stephen Colbert made a joke on The Late Show about President Trump performing fellatio on Russian leader Vladimir Putin, many across the political spectrum took to social media to call for CBS to fire Colbert.  Colbert remains unapologetic about the joke.  He stands by his right to make vulgar jokes, even to criticize the President, and noted in a later monologue that “anyone who expresses their own love in their own way is to me, an American hero.”  (He did, however, say that some of his terms were “cruder than they needed to be.”)

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My Last Class at ONU and My Future as a Law Professor

Today, I taught my last class as a professor at Ohio Northern University.  At the end of June, I will be moving to Dayton to become a professor at Dayton Law School.  Just like last year, when I transitioned from being a Climenko Fellow at Harvard Law to an assistant professor at ONU Law, I would like to share some reflections and hopes for the future.

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Blurred Lines and Feminist Rhetoric

Philosophy professor Rachel Tuvel has had a bad few days.  Hypatia, a journal of feminist philosophy, published her article “In Defense of Transracialism.”  As the name suggests, her article considered whether transracial identity should be given the same status as transgender identity.  (My short, somewhat reflexive answer would be “No,” but this is a question philosophers should consider.)  Academics then unleashed the most heated, brutal criticism against her and her methods – calling her work “violence” for using phrases like “male genitalia” and deadnaming Caitlyn Jenner, who also alternatively refers to her former name.  Hypatia, which accepted the paper after anonymous peer review with several referees, ultimately apologized for the article and claimed it should never have been published.

Some academics have come to Tuvel’s defense.  Philosopher and law professor Brian Leiter claimed the open letter and Hypatia’s apology are defamation.  I would not go this far.  The statements against Tuvel were based on opinion and judgment that did not imply the existence of untrue, defamatory facts.  To stifle discourse by threatening a lawsuit would be to engage in even more extreme forms of censorship than the feminist philosophers trying to ruin Tuvel’s career.  I would, however, say that this event illustrates the crisis of blurred lines in feminist rhetoric (and in academic and political discourse more generally).

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The Worst First Amendment Myths on Twitter (Part One)


Last week, Howard Dean joined the ignominious club of politicians who have tweeted something obviously wrong about our First Amendment rights.  Dean tweeted that “hate speech is not protected,” a statement that would be true if uttered in any other Western democracy.  However, America’s exceptionally robust free speech protections mean that there is no such category of speech as “hate speech” that does not receive First Amendment safeguards.  Speech derogatory of people of different races or religions, which is banned elsewhere, cannot be banned here.  I believe this is a good thing.  Often those countries use their hate speech laws to arrest and imprison people for pure political speech.

I wonder how Howard Dean, a past Presidential candidate and physician, could be so wrong about our rights.  First Amendment doctrine is complicated, but we do not do a good enough job of teaching the basics, let alone the nuances, of free speech.  Perhaps this is because we don’t want people to know their rights –then they might invoke them.  This blog series begins a small effort to dispel the worst First Amendment myths, as seen on Twitter.

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