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.
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.
Continue reading “Legal Frameworks and Free Speech Lenses in The Handmaid’s Tale”
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.
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.”)
Continue reading “The FCC’s Investigation of Stephen Colbert Likely Violates The First Amendment”
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.
Continue reading “My Last Class at ONU and My Future as a Law Professor”
Below is a practice insurance hypo for my class to prepare for the exam. Answers will be posted tomorrow.
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).
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.
Continue reading “The Worst First Amendment Myths on Twitter (Part One)”
As someone who wishes to dedicate her career to writing about First Amendment issues, I cannot shy away from controversial topics. I manifest my own principles by entering important conversations many are afraid to have. If I am silenced by fear of others’ reactions, what hope is there for those not so enamored of free speech ideals? And so, it’s time to share my views about some of the corrosive, and some of the beneficial, ways that identity politics and a focus on privilege have affected our academic discourse.
If I had to select the two harms to which we, as a society, are currently most attuned, I would choose the serious harms caused by sexual violence and discrimination. Perhaps unsurprisingly, these are also the two areas where individuals are least concerned about direct infringements and chilling effects on free speech. I want to highlight some of the less-discussed ways in which our zeal to prevent sex crimes and bigotry has dramatic free speech consequences. I also want to begin to make the case for why we should care about these consequences, despite the magnitude of these harms.
Continue reading “Sex Offenders, Bigots, and the First Amendment”
