Free Speech Showdown at Georgetown Law School

Georgetown Law Dean William Treanor is reportedly close to making a decision on whether to fire Ilya Shapiro as Executive Director of the Georgetown Center for the Constitution. Shapiro is under fire for his opposition to the pledge by President Joe Biden to limit consideration for the next Supreme Court nominee to a black female. Shapiro sent out a horrendously badly worded tweet that supported a liberal Indian-American jurist as opposed to a “lesser black woman.” He later removed the tweet and repeatedly apologized. However, Georgetown University’s Black Law Students Association and others are demanding his termination. I entirely understand the outrage over the language used in the tweet, but it does not warrant termination in my view. The controversy raises a stark choice for Georgetown in supporting or discarding principles of free speech and academic freedom.

Various politicians and commentators have raised concerns over President Biden’s use of such threshold exclusionary criteria. Indeed, the vast majority of the public (including Democrats) do not support the pledge to only consider black women for the vacancy on the Court.

On Wednesday, however, Shapiro tweeted the following:

Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identify politics benefit of being first Asian (Indian) American. But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?

Because Biden said he’s only consider[ing] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.

I sincerely and deeply apologize for some poorly drafted tweets I posted late Wednesday night. Issues of race are of course quite sensitive, and debates over affirmative action are always fraught. My intent was to convey my opinion that excluding potential Supreme Court candidates, most notably Chief Judge Srinivasan, simply because of their race or gender, was wrong and harmful to the long term reputation of the Court. It was not to cast aspersions on the qualifications of a whole group of people, let alone question their worth as human beings. A person’s dignity and worth simply do not, and should not, depend on any immutable characteristic. Those who know me know that I am sincere about these sentiments, and I would be more than happy to meet with any of you who have doubts about the quality of my heart.

In seeking to join the Georgetown community, I wanted to contribute to your worthy mission to educate students, inform the public, and engage in the battle of legal ideas that lead to justice and fairness. I still want to do that. Recklessly framed tweets like this week’s obviously don’t advance that mission, for which I am also truly sorry. Regardless of whether anyone agrees or disagrees with me on a host of legal and policy issues, I can and will do better with regard to how I communicate my positions.

We have previously discussed such controversial statements made by faculty members on social media. My response to these controversies is predictable. I have defended faculty who have made similarly disturbing comments “detonating white people,” denouncing policecalling for Republicans to suffer,  strangling police officerscelebrating the death of conservativescalling for the killing of Trump supporters, supporting the murder of conservative protesters and other outrageous statements. I also defended the free speech rights of University of Rhode Island professor Erik Loomis, who defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence.

Even when faculty engage in hateful acts on campus, however, there is a notable difference in how universities respond depending on the viewpoint. At the University of California campus, professors actually rallied around a professor who physically assaulted pro-life advocates and tore down their display.  In the meantime, academics and deans have said that there is no free speech protection for offensive or “disingenuous” speech.  CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,”  Bilek insisted that disrupting the speech on free speech was free speech. (Bilek later cancelled herself and resigned after she made a single analogy to acting like a “slaveholder” as a self-criticism for failing to achieve equity and reparations for black faculty and students). We also previously discussed the case of Fresno State University Public Health Professor Dr. Gregory Thatcher who recruited students to destroy pro-life messages written on the sidewalks and wrongly told the pro-life students that they had no free speech rights in the matter.

Georgetown has been the focus of a number of free speech controversies in recent years (here and here and here). Terminating Shapiro would cause lasting damage to the university and its express support for free speech. While he is a lecturer rather than a tenured professor, he is entitled to the protection of both academic freedom and free speech.

Shapiro is an accomplished scholar, writer, and commentator. His books include Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (2020). He regularly provides commentary in the media and is a legal consultant to CBS News.

Dean Treanor should refuse to take this step not due to any agreement with Shapiro but rather due to Shapiro’s right to disagree with others. Free speech is both the obligation and the solution in this controversy. Critics are free to protest or condemn his views. What they should not be able to do is to silence him as a member of the faculty.

135 thoughts on “Free Speech Showdown at Georgetown Law School”

  1. The Washington Post newspaper has a very long article about a NFL team in Washington changing it’s name to “Commanders”. Not once in the long article does the article state the current name which was “Redskins”.

    BS.

  2. I was disappointed in Shapiro’s apology; it was cringing, groveling, fawning. Perhaps he needed a smart, wise, female Black assistant who could have sent him a quick memo: “Shapiro, please issue a follow-up tweet: “I said it. I meant it. I should have more correctly used the words ‘lesser-qualified,’ which is what I was referring to. It was my opinion and I own it. I regret that it may have hurt some, which was not my intention, and for THAT, I sincerely apologize. Period.” ……..(my parents always told us to have the “courage of [your] conviction(s).” If Shapiro believed what he said, then stand up and defend it and suffer the consequences.)

  3. Over at the Volokh Cospiricy Eugene has a great take on the corner Dean Treanor has painted himself into.

    “If Georgetown were to interpret its policies on discrimination and harassment as forbidding tweets that are seen as offensive or derogatory to particular racial groups, then I think it would be bound to apply the same rules to future tweets that are seen as offensive or derogatory to people who belong to or endorse any political party as well. ”

    https://reason.com/volokh/2022/01/31/georgetown-discrimination-harassment-and-political-affiliation/

    But of course this is a institute of higher education. Equal application of the rules are for the little people. Race hustlers and PC warriors like the law school at Harvard don’t have to follow their own guidelines because, shut up and obey.

  4. lessor — a person who leases a property; a landlord.

    Yes, landlords can be evil people. Woody Guthrie wrote a song about Donal Trump’s father, from whom he rented while in New York City.
    Don’t want no landlords on the Supreme Court!

    1. I notice that Jonathan Turley’s original “lessor” has been corrected to “lesser” after my comment appeared. Cause and effect? Anyway, “lesser” isn’t even “lessee” so the law of contracts doesn’t even apply now. 🙂

  5. Turley says:

    “Dean Treanor should refuse to take this step not due to any agreement with Shapiro but rather due to Shapiro’s right to disagree with others. Free speech is both the obligation and the solution in this controversy. Critics are free to protest or condemn his views. What they should not be able to do is to silence him as a member of the faculty.”

    Has Turley EVER supported the termination of ANY Professor as a result of their condemnable speech? As a very controversial professor at his own law school, I get the feeling that Turley is invariably “working the refs” to argue against ANY employment repercussions to ANYTHING that a professor may say regardless of how despicable. Certainly, Turley has a “dog in this fight,” and thus his exhortations which serve his personal interests should be taken with a grain of salt!

    1. FWIW, Shapiro isn’t a member of the Georgetown faculty. He’s an administrator: executive director of the Georgetown Center for the Constitution.

      Turley is tenured and not at any risk at GWU. He’s a full professor there with a chair (the Shapiro Professor of Public Interest Law). Frankly, I think the little risk to Turley comes more from the Rules of Professional Conduct of the bars where he’s admitted. For example, the DC Bar’s rules include:
      “Rule 8.4: Misconduct
      “It is professional misconduct for a lawyer to: … (c) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation…”

      1. I don’t believe that Turley is at any risk of jeopardizing his law license. As I have said repeatedly, Turley may be disingenuous and certainly hypocritical, but a liar, he is not. He always maintains plausible deniability.

        I was not suggesting that Turley would be fired; rather, I was suggesting that he may be getting a cold shoulder from students, friends and faculty at GWU for selling out to Fox News. Can it not be but humiliating to Turley that his employer is being sued for defamation for broadcasting Trump false conspiracy theories about Smartmatic and Dominion? Is it any wonder that Turley publicly does not state with pride his status as a “Fox legal analyst” except when he must do so in order to reveal a conflict of interest?

        Turley is pushing forth his narrative that teachers have what recently he referred to as “pedagogical privileges” to be as obnoxious as they want without suffering any employment repercussions. By driving home this notion of privilege, Turley hopes to play the victim card wherever a professor suffers consequences for bad speech apart from good speech. Turley is not the least bit worried about being fired or his law license threatened; his concern IS being made *persona non grata* amongst his fellow liberal academics for profiting from the rage fomented by his employer Fox News.

        1. You and I have different opinions about whether “He always maintains plausible deniability.”

          Have you ever written Turley to suggest that he correct a factually false statement he’s made, or a material omission, or a misleading claim that he presents as fact but is simply a guess on his end? I have. Sometimes he’s subsequently changed the text of his column, generally without noting the change, but often, he chooses not to.

          I consider that an active choice not to correct something, despite knowing that it is false or misleading.

          1. No. I have never written him. Very interesting his reaction to your emails.

            I am giving him the benefit of my doubt. I stick around here to find out if I have been mistaken. If Trump is put on trial, we will know where Turley stands- either he will condemn the prosecution or defend it.

      2. He’s an administrator: executive director of the Georgetown Center for the Constitution.

        And the Constitution carves out free speech protection to College Administrators.

    2. Has Turley EVER supported the termination of ANY Professor as a result of their condemnable speech?

      Yea that stupid blind spot where the Constitution is concerned.

      If the 1st ammendment of the Constitution doesn’t protect condemnable speech, what purpose does it serve?

      Phony hurt feelings is not a crime.

      1. Iowan,

        Turley’s problem is that he wants misinformation covered as ‘free speech’. .But misinformation is now a serious threat to Democracy and Public Health.

        1. The fact that speech is false does not remove it generally from 1st Amendment protections (except in cases of libel and defamation, securities law, fraud, false advertising, and other commercial contexts, where special rules apply).

        2. Why do you consider your free speech more trustworthy than anyone else’s? To date, you have been wrong most of the time.

          Unless what you call misinformation is heard and commented on, how does one know it is misinformation?

          Your rationale, combined with your misinformation on this blog, would mean that you would be permanently banned from this blog for promoting misinformation.

  6. I do not know who Shapiro is so I have no comment on this person’s character nor his intent when composing the tweet. My comment is only on the difference that a single word can make.

    The phrase ‘lessor black woman’ is ambiguous (at best!) and, without further context, could certainly be construed to mean that the woman was considered to be ‘lessor’ simply, and solely, because she is black. Whether this is the message that Shapiro intended to convey matters not. What matters is that he has opened the door to the ‘possibility’ that his objection is based solely on race and he will be virulently attacked for this.

    Had Shapiro said ‘a lesser qualified black woman’ the addition of the work ‘qualified’ would have make clear that his objection was based solely on judicial qualifications, not race. That is not to say that he would not still be attacked for having a different political view, just that he would not be attacked for being a racist.

    As is it, we can only speculate that his meaning is somewhere between the former and latter interpretations. What a difference that a word makes.

  7. Relevant to the topic of free speech, the Left have lost their minds yet again as to Virginia Governor Glenn Youngkin providing a resource for parents to express their thoughts on teachers using divisive material in schools. Bravo for Gov Youngkin

    https://www.governor.virginia.gov/media/governorvirginiagov/governor-of-virginia/pdf/eo/EO-1-Ending-the-Use-of-Inherently-Divisive-Concepts.pdf

    ENDING THE USE OF INHERENTLY DIVISIVE CONCEPTS, INCLUDING CRITICAL RACE THEORY, AND RESTORING EXCELLENCE IN K-12 PUBLIC EDUCATION IN THE COMMONWEALTH

    By virtue of the authority vested in me as Governor, I hereby issue this Executive Order to ensure excellence in K-12 public education in the Commonwealth by taking the first step on Day One to end the use of inherently divisive concepts, including Critical Race Theory, and to raise academic standards.

    The resource provided is the following email address where parents can share their voices.

    A spokesperson for the governor said the helpeducation at governor.virginia.gov email address is “a resource for parents, teachers, and students to relay any questions or concerns.

    The response by the Virginia Democrat losers of the election? “It is divisive, pitting parents against teachers”

    Yeah, terrorists are like that. No word from US Attorney General Merrick Garland and sending the FBI on Virginia parents.

  8. Jonathan: I wouldn’t call it a “showdown” at Georgetown Law. Just another case you want to defend–the right of a conservative Georgetown lecturer to make racist tweets about Biden’s intent to appoint a Black woman to the SC. For you it’s all about “free speech”. Ilya Shapiro wears his racism on his sleeve. He thinks any male would be preferable to a “lesser black woman. And this tweet comes even before Biden has made his choice. From press reports we know that at least two of the candidates have impeccable credentials and are highly qualified. Senator Lindsey Graham thinks Michelle Childs would be a great addition to the Court. Shapiro claims his “poorly drafted tweets” are misunderstood. Bunk! Shapiro is an attorney and former VP at the conservative Cato Institute. Shapiro chooses his words carefully and it is ludicrous to believe his tweets were just the result of poor drafting. He has made other similar tweets. Shapiro has now been suspended and facing possible termination. Even if reinstated there should be consequences for Shapiro. Perhaps he should be required to wear a sign on his back in classes and while walking on campus: “I AM A RACIST”. You know, like the 5-pointed Holocaust badges the Jews were required to wear in Nazi Germany–clearly identifying them for everyone to see. Considering Shapiro’s probable heritage perhaps this could be a teachable moment for him.

    1. What an outrageous post. It appears that you no nothing about Shapiro, his background, or his work, but yet you label him a racist. How easy it is on a website to throw heinous accusations around like confetti. Any reasonable person familiar with Shapiro reading his text knows what he meant – his concern was appointing someone to the bench who met Biden’s criteria but was less qualified than others outside those criteria. His phrasing was admittedly poor, but I suspect we’ve all expressed our thoughts poorly at one time or another. If you know of past instances concerning Shapiro that support your accusation that he’s a racist, what are they? If you don’t, you owe Shapiro an apology for mindlessly smearing him.

      1. TW52: I made a similar comment to him yesterday after his string of diatribes disparaging Professor Turley. I’m not sure what his motivation is….

        1. “I’m not sure what his motivation is . . .”

          To degrade Turley, by any means necessary.

          An accomplished, well-known Constitutional scholar — who holds to standards — is an impediment to the desires of the tyrannical Left. And, so, Turley, must go.

    2. For you it’s all about “free speech”

      That is a principled position.

      What hill are you willing to die on? Is there any part of the Constitution that is worth defending at all costs?

  9. This dispute proves how poor Biden is at governing a pluralistic republic. He wants to control like a fascist using force.

  10. The little Maoist revolutionaries backed up by their parents platinum American express cards and those $70,000 tuition payments will get their way. Spineless University Administrators almost invariably cave in to their little snowflake customers, Surprised to learn that GU even retained someone associated with the CATO institute.

  11. In her Substack article “On Decency and Double Standards at Georgetown,” Bari Weiss quotes a 2018 Tweet from Georgetown professor Carol Christine Fair as follows:

    “Look at this chorus of entitled white men justifying a serial rapist’s arrogated entitlement.

    “All of them deserve miserable deaths while feminists laugh as they take their last gasps. Bonus: we castrate their corpses and feed them to swine? Yes.”

    I can’t begin to do justice to the reprehensible sentiments or foul language employed by Professor Fair in justifying her Tweet and I will not comment on the sentiment she expressed with her Tweet. You can read them yourself here: https://tinyurl.com/ycv2xv2a

    I will say that the same Georgetown administration that has its sharpened knife ready to take Ilya Shapior’s scalp for his ill chosen words now rushed to Professor Fair’s defense on First Amendment grounds then.

    Forgive me . . . I’m about to throw up.

    1. I condemn Fair’s comment, but she’s a professor in the School of Foreign Service, not the Law School, so your claim that it’s “the same Georgetown administration” is mistaken. Different schools with different Deans. She is also a tenured faculty member, whereas Shapiro is not — he’s admin. For better or worse, that’s relevant to university responses.

      Georgetown didn’t rush to Fair’s defense. Her Dean condemned what she said (don’t assume that Bari Weiss is quoting or even linking to all of the formal response, she isn’t) and removed Fair from teaching.

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