We have been discussing the free speech issues raised by efforts to terminate professors who criticize the Black Live Matter Movement or aspects of the protests following the killing of George Floyd. However, there is another such controversy with the inverse fact pattern. Claira Janover has been fired as an “incoming government and public business service analyst” at Deloitte after posting a video that suggested that she would stab people who said “all lives matter.” Yesterday, we discussed a dean at the University of Massachusetts who says that she was fired for using such a line in an email. Ironically, Janover shows the same intolerance for anyone with an opposing view, but the case still raises some of the same free speech issues that we have previously discussed, including the punishment of individuals for their social media postings.
We recently discussed the release of photos of suspects by the FBI of individuals connected to the attack on the statue of Andrew Jackson outside of the White House. One of those arrested is Jason Charter who is described as the “ringleader.” He is also a George Washington University student and a professed supporter of Antifa. Charter is likely to be a priority prosecution for the Administration. However, his criminal case could raise some challenging issues on admissibility of evidence of his affiliations and political views.
In a Fox interview last night, the stepmother of ex-Atlanta police officer Garrett Rolfe raised what clearly sounds like a claim of defamation against her former employer Equity Prime Mortgage in Atlanta. Melissa Rolfe says that she was fired after her step son was charged with the murder of Rayshard Brooks. Her firing has been in the news, but the legal standing of Rolfe seemed questionable to challenge the termination. She appears to be an “at will” employee who can ordinarily be fired, as it is often said, for “good reason, bad reason, or no reason at all” (absent the violation of a statutory or constitutional protection). However, it appears that she may be contemplating a lawsuit based not on the termination by Equity Prime Mortgage but how the company explained the termination after it was criticized for allegedly firing Rolfe simply because of her son. That could present an interesting defamation action and a cautionary tale for companies in dealing with such high-profile matters.
We have been discussing the wanton destruction of public memorial and statues across the country, including baffling attacks on abolitionists and those who fought against slavery. One of the most incongruous targets has been Abraham Lincoln in various cities. Now, students at the University of Wisconsin, including the Black Student Union and the Student Inclusion Coalition, have demanded the removal of Lincoln’s statue as ‘a single-handed symbol of white supremacy.” The signer of the Emancipation Proclamation, the vocal advocate for the 13th Amendment, and the man assassinated for his war against the South and slavery. Saying that Lincoln is the “symbol of white supremacy” has about as much foundation as saying Harvey Milk is the symbol of militant heterosexuality. Both were great leaders who were killed at the height of campaigns for equality. As I discuss below, there are aspects of Lincoln’s legacy that are worthy of condemnation but even John Wilkes Booth would dispute the claim of Lincoln as the embodiment of white supremacy.
Below is my column in The Hill newspaper that looks at three different stories attacking Attorney General Bill Barr as acting unethically and corruptly from the Flynn case to the Berman decision to the Cohen case. I have not hesitated to criticize Barr on his policies or actions. However, these are based on long-standing differences over constitutional and legal issues. It is the character attacks that I found notable in last week’s stories particularly in the absence of supporting evidence.
Here is the column:
We have been discussing the destruction and defacing of public monuments, including the iconic bust of George Washington at the center or our own campus at George Washington University. President Donald Trump has issued an executive order imposing up to ten years imprisonment for those responsible for such destruction. In reality, he has no unilateral authority to impose such criminal penalties, but existing federal laws do allow for prosecution. There now appears to be a comprehensive effort underway with the FBI releasing images of 15 suspects who authorities believe vandalized a statue of Andrew Jackson recently near the White House. However, the poster contains an interesting reference.
Below is my column in The Hill on the ongoing destruction of memorials and statues. After this column ran, I learned that one of the iconic busts of George Washington University had been toppled on my own campus. I did not learn that from our university, which was conspicuously silent about this destructive act at the very center of our campus. There is something eerily familiar in the scenes of bonfires with police watching passively as public art is destroyed. Such acts are akin to book burning as mobs unilaterally destroyed images that they do not want others to see. There are valid issues to address on the removal of some public art but there is no room or time for debate in the midst of this spreading destruction. Even when there is merit to objections to literally or artistic or historical works, mob action threatens more than the individual work destroyed by such action. The media has largely downplayed this violence, including little comparative coverage of an attack on the Democratic state senator who simply tried to videotape the destruction of a statue to a man who actually gave his life fighting against slavery in the Civil War. As discussed earlier, history has shown that yielding to such mob rule will do little to satiate the demand for unilateral and at times violent action. People of good faith must step forward to demand a return to the rule of law and civility in our ongoing discourse over racism and reform.
Here is the column:
We have been following controversies over free speech on campuses, particularly in recent weeks involving faculty and student critics of the ongoing protests or the “Defund The Police” movement. Indeed, I have a column on those concerns this morning. The most recent controversy concerns a Catholic chaplain, Daniel Moloney, who has resigned as chaplain for the Massachusetts Institute of Technology. His removal followed his reference to the criminal record of George Floyd and equivocating comments on the problem of racism in police departments. His case raises the question of whether the free speech concerns should be treated differently for non-academic positions.
I have often criticized the Trump Administration for its environmental policies from blocking climate control measures to rolling back on pollution regulations to developing pristine natural areas, including recent changes to hunting rules in Alaska. Now the Forest Service is being sued over its failure on how expanded grazing operations are impacting gray wolf populations. Given the ruling on DACA yesterday on the failure of the Administration to satisfy basic procedures requirements under the Administrative Procedure Act, this litigation will hopefully succeed in forcing a reevaluation of the operations of these private businesses on federal lands.
In a 5-4 ruling, the Supreme Court had blocked the Trump Administration from ending the Deferred Action for Childhood Arrivals (DACA) program as an “arbitrary and capricious” change. Chief Justice John Roberts, joined by the four liberal judges, ruled that Trump’s decision violated the Administrative Procedure Act. It was another self-inflicted wound due to a poorly executed policy change in this area. The ruling is based on procedural failures, not the merits or the underlying authority.
Google has moved against another set of conservative sites. While many have celebrated the action against ZeroHedge and The Federalist, I remain deeply concerned over the free speech implications of such actions. I have written for years about public and private censorship, including recent actions to regulate and control speech on the Internet. Democratic leaders have been calling for censorship on the Internet and in social media for years, a move that will destroy the greatest forum for free speech in the history of the world. Writers have joined in this movement and two such academics recently declared “China was right” all along about censorship.
As will come as no surprise to many on this blog, I view this latest action as another form of private censorship that targets conservative sites while ignoring similar rhetoric from the left. I am not very complex when it comes to such conflicts over free speech. I am not as much concerned with the merits of these fights as the implication of targeting some sites over others. I know very little about ZeroHedge while I am familiar with some of the writers on The Federalist. Google has said comparatively little about the reason for barring the sites and what NBC originally reported has been contradicted by the company. However, it is the explanation given for the action taken against the Federalist that I wanted to address. It seems to follow the pattern of politically biased, content-based discrimination against conservative sites by companies like Twitter, Facebook, and Google. Despite the clear bias shown in these actions, most academics are either applauding the crackdown or remaining conspicuously silent as companies silence those with opposing or unpopular views.
Harvard Law School professor Laurence Tribe is under fire this week after referring to the selection of an African American for vice president over Sen. Elizabeth Warren as mere “cosmetics.” The comment set off a firestorm with critics calling the comment racist. I have strongly disagreed with Tribe’s legal positions and his rhetoric. However, I testified with Tribe during the Clinton impeachment and I have interacted with him for years. He is neither a racist nor dismissive of racial concerns. Tribe has spent his life fighting for his vision of a more perfect and equal union. People need to afford others a modicum of decency and consideration in such ill-considered commentary. Anyone who believes that Laurence Tribe is a racist is discarding decades of public interest work over a wayward comment.
We have yet another teacher suspended or put on leave for merely expressing her opinion of Black Lives Matter on her personal Facebook page. After Tiffany Riley wrote that she does not agree with the BLM, the Mount Ascutney School Board held an emergency meeting to declare that it is “uniformly appalled” by the exercise of free speech and Superintendent David Baker assured the public that they would be working on “mutually agreed upon severance package.” The case magnifies concerns over the free speech rights of teachers on social media or in their private lives. As a public employee, Riley could seek judicial relief rather than a severance package under the First Amendment.
Berkeley is up in arms this week because of a letter sent by someone claiming to be an anonymous professor of history at U.C. Berkeley. The writer, who identifies as a person of color, objects to a loss of free speech and academic freedom in the school adopting an institutional position on Black Lives Matter. The writer objects to the silencing of academics who do not support BLM for reasons entirely separate from the protection of black lives. I was sent this letter when it started to be circulated and I did not discuss it because I have no idea if this is an actual member of the Berkeley faculty though Kentucky State University Assistant Professor of Political Science Wilfred Reilley has recently vouched for the identity. However, it is the response of the Berkeley faculty that I believe is notable and concerning. The faculty denounced the letter and said that there is “no evidence” that such a person teaches on the faculty. Indeed, it is becoming increasingly impossible for any academic to criticize BLM or aspects of the protests. However, what concerns me is that Berkeley’s response notably does not even bother to state the pretense of tolerance for opposing views. The condemnation would seem to reaffirm rather than redress the concerns over academic freedom and free speech for dissenting faculty members.