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.

Continue reading “Free Speech After Charlottesville” →

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.

Continue reading “How Google (and Academia) Should Reconcile Inclusion Efforts with Viewpoint Diversity” →

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.

Continue reading “The Rule of Law and the First Amendment” →

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 Morril, 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.

Continue reading “Sexual Assault and “Internet Vigilantism”” →

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.

Continue reading “No One in the Ring Has Clean Hands: CNN and the Anatomy of Politics by Meme” →

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.

Continue reading “Disingenuous Invocations of “Free Speech”” →

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.

Continue reading “What Justice Gorsuch’s Dissent in Pavan Means for Masterpiece Cakeshop” →

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.

Continue reading “The Lawsuit Against John Oliver, and the Problem with Getting Your Views from Comedians” →

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.

Continue reading “Twitter and the Marketplace of Bad Ideas” →

Contributors to white supremacist Internet sites are basking in the tragic ordeal of University of Virginia student Otto Warmbier.  A brief foray into the world of the far-right Internet raises the specter that unregulated speech leads not to truth, but to poorly reasoned vitriol (and sometimes much worse).  Fighting speech with speech does not seem to work here.  The more these sites proliferate, the more women and minorities may fear expressing their opinions publicly (these sites even encourage readers to harass people).  Allowing the speech of the far right may thus chill the speech of others.  There is no great solution to this problem, an unfathomable sector of angry people echoing their own views.  Their presence on the Internet can, however, help us understand our own pathologies in discourse, and remind us of the justifications for First Amendment protections.  Plus, there are things we can and should do to engage with these websites.

Continue reading “Otto Warmbier, White Supremacists, and the Ugliness of Internet Speech” →