Harvard’s student newspaper, The Harvard Crimson, broke the story that Harvard rescinded the acceptances of at least ten students for participating in an offensive Facebook chat group.  I then wrote a blog post criticizing the decision.  Harvard should not be policing the speech of students who voluntarily sign up for a chat forum. Although the students found each other through an official Harvard group, the private dark memes chat group was, as Harvard notes, unconnected to Harvard.  I believe both the tactics Harvard used (requiring students to turn over all communications within this chat group) and the severity of the punishment set dangerous and scary precedents. Even if a private (non-state) university is legally permitted to act as arbiter of what off-campus speech is acceptable for its students, that does not mean Harvard should do so.

After my piece was quoted in the Washington Post, I received a great deal of feedback from both supporters and opponents of my view.  The supporters were glad I was advancing a position that many keep to themselves.  The opponents expressed a range of views, many of which included thoughtful, important points.  Below, I reply to some of the most compelling objections.  Although I think Harvard is making a terrible mistake, this is a difficult issue.  I am glad to see so many engaging on a topic at the intersection of speech issues, privacy issues, and bigotry concerns at our nation’s premier university.

Continue reading “Objections to “On Harvard and Humor”” →

According to the Harvard Crimson, Harvard has revoked the acceptances of at least ten students admitted to the Class of 2021.  These prospective students formed a private Facebook group chat to exchange offensive memes.  They mocked child abuse, made racist jokes, and endeavored to deride all of the stances that we, academics and students, promote and hold hear.  These students behaved immaturely and offensively.  What Harvard did in response was much worse.

Continue reading “On Harvard and Humor” →

Part Two: Judicial Legitimacy and Governing Law

This is the second post in a series on whether, and how, President Trump’s campaign statements should be considered when deciding the constitutionality of his travel ban, Executive Order 13780 (EO-2).  The first post in this series, on the Fourth Circuit’s division over whether campaign statements can be considered in the Establishment Clause analysis, is here.   In this post, I explain why campaign statements matter to the constitutional calculus.  I also sketch out possible ways of treating the campaign statements to best comport with rule of law principles.

Continue reading “President Trump’s Travel Ban and His Campaign Statements (A Series)” →

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.

Continue reading “We Are Becoming a Nation that Responds To Ideas with Violence” →

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.

Continue reading “Democracy, Free Speech, and the GOP” →

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.

Continue reading “The Worst First Amendment Myths on Twitter (Part Two)” →

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.

Continue reading “President Trump’s Travel Ban and His Campaign Statements (A Series)” →

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.

Continue reading “Richard Spencer’s Biceps (and why his legal ability to maintain them matters)” →

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.

Continue reading “Resolution of Timothy Piazza’s Death Cuts to the Heart of Our Legal and Social Identity” →

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.

Continue reading “The Resistance and the First Amendment” →