Below is my column in the Hill on a variety of proposals that could rekindle the debate over “reverse discrimination” in the federal courts. Many of the proposals seek to adopt exclusive racial classifications that will collide with existing precedent under both statutory and constitutional law. If this movement is to result in lasting reforms, these threshold legal challenges should be considered.
There is a new form of protests sweeping across the country as individuals put on anti-Mask masks to defy mandatory mask rules. The anti-masks are made of thin material, mesh or even crochet and are advertised as having no protective qualities for Covid-19. The question is whether they are legal. They appear to be so.
The Seattle City Council is facing something of a dilemma in its popular pledge to cut the police budget by 50 percent. To do so would require firing a significant number of police officers, which is also popular. The problem is that the firing would be done by seniority and many of the less senior officers are black. The solution according to City Council member Lisa Herbold is simple: fire officers based on their race. While that would be the definition of racial discrimination, Herbold clearly believes that it is discrimination for a good cause. The federal courts are likely to disagree. Most notably, Herbold’s call for racial discrimination against white officers would seek to undue the work of Justice Thurgood Marshall who insisted that racial discrimination unlawful and evil regardless of the race you want to disenfranchise or discriminate against.
I recently received a letter contesting my statements concerning Attorney General Bill Barr in columns (here and here and here and here) and congressional testimony (here and here). The letter is from Ralph Nader, Lou Fisher, and Bruce Fein. I have known all three signatories for many years and I have the utmost respect for them. They offer detailed and thoughtful disagreements with my past statements and the record of Attorney General Bill Barr. I asked them if they would allow me to share their arguments with the blog and they have agreed to do so. As with the prior posting of Professor Morrison, I strongly encourage you to consider the analysis from three of the most influential minds in Washington.
These are figures who require little introduction. They are well known throughout the world for their contributions to the law and public policy. Ralph Nader is as legendary figure who has fought his entire life for consumer protection, environmental protection and good government. He has run for president repeatedly (indeed I voted for him) and is widely viewed as one of the most influential figures in the world on public policy. Lou Fisher spent four decades at the Congressional Research Service and is widely regarded as one of the most influential figures in the shaping of congressional legislation and policies. He is widely regarded as one of the foremost experts on constitutional and congressional issues. Bruce Fein was a high ranking Justice Department figure in the Reagan Administration and has been one of the most influential conservative voices in print and television for decades. He is known for his independent and principled analysis of legal and constitutional issues.
As I stated in Attorney General Barr’s confirmation, he comes to this position with long-established and robust views of executive privilege and powers. While I have long disagreed with him on many of these issues, I view many of the current controversies to reflect policy and interpretative differences, not ethical or criminal or impeachable misconduct. I do not agree with presumptions made about his improper motivations or designs in carrying out his duties, for a second time, as Attorney General of the United States. Despite my many friends on the other side, my view has not changed. Nevertheless, people of good-faith can disagree and that is precisely what is offered by Messrs. Nader, Fisher, and Fein (sounds like a great law firm!)
MSNBC’s Joy Reid has two notable developments this week. She was named as the new nightly anchor to replace Chris Matthews and was lost a major appeal in a defamation lawsuit tied to her prior position. Reid has a history of controversial statement including her insistence that her posts on her blog with homophobic comments were fabricated by hackers. She later apologized for the postings that she claimed that she made. She acknowledged “I can definitely understand, based on things I have tweeted and have written in the past, why some people don’t believe me.” She was sued in one of the most notorious postings on social media by Roslyn La Liberte, a Trump supporter, who was trashed by Reid for comments that she never made and an account that proved to be untrue. Reid relied on California’s Anti-Slapp statute and immunity arguments to try to force La Liberte out of court, even though she again later apologized. Now the United States Court of Appeals for the Second Circuit has handed down a major ruling against Reid that could undermine future defenses by media figures. Continue reading “Joy Reid Loses To La Liberte: MSNBC Host Creates New Precedent Binding Media”→
We have been discussing the campaigns to remove faculty who voice dissenting views on the current protests or underlying issues. The art world has now been swept into this disturbing trend where critics label any opposing views as racist and demand the removal of anyone who questions their demands. That was the case with Gary Garrels the long-standing senior curator of painting and sculpture at the San Francisco Museum of Modern Art (SFMOMA). He resigned after museum employees circulated a petition that accused him of racism because he simply stated that, while seeking to diversify the artists featured in the collection, he would not bar acquisitions of artists simply because they are white. That would not only decouple ignore the inherent value of the art but apply a racial discriminatory rule.
We have been discussing the shocking abandonment of journalistic principles by the New York Times in its recent apology for publishing a column by a United States Senator and forcing out an editor who had the audacity to publish an opposing view of the current protests. The newspaper effectively declared echo-journalism to be its new mission. Now another opinion writer and editor, Bari Weiss, has resigned after what she called an “illiberal environment” where she has been harassed and abused by other reporters without any intervention from the management. In a scathing resignation letter, Weiss called the Times a “Digital Thunderdome.”
Now for some good news. We have been following efforts to have professors stripped of academic positions or outright fired for voicing opposing views of police shootings, Black Lives Matter movement or aspects of recent protests from the University of Chicago to Harvard to Cornell to other schools. Now we have a professor at Creighton University who has triggered an outcry by calling support for police officers an expression of white supremacy. The University later issued an apology on behalf of Associate Professor of Theology Zachary Smith but no one has called for his termination. Today, that is progress. We can only hope that if Smith’s comments were directed at groups or issues associated with the current protests, the university and his colleagues would have the same measured or muted response.
A New York City education council meeting recent attracted national attention after one member of the council (and its past President), Robin Broshi, accused another member, Thomas Wrocklage, of racism after he was seen in a zoom meeting bouncing a black child on his lap. The video below is rather breathtaking but the incident has led to countervailing claims of racism and slander. As is often the case, we tend to jump on any novel torts claims and this is a good example of the tension between opinion and slander, particularly in such overheated (indeed radioactive) moments in public debates. It is unfortunately an increasingly common legal question in today’s rage-filled politics. The video of his meeting has now been shown throughout the world. However, it has some interesting elements as a pedagogical tool for understanding the underlying applicability of tort liability, or lack thereof.
We have been discussing the targeting of professors who voice dissenting opinions about the Black Lives Matter movement, police shootings, or aspects of the protests around the country from the University of Chicago to Cornell to Harvard to other schools. However, student face even greater pressure to conform to a new orthodoxy enforced on our campuses. An example is conservative Georgetown University junior Billy Torgerson who was the subject of a formal resolution of condemnation by the Georgetown University Student Association as well as a call for a bias complaint to the university. The reason is a column posted on his own website entitled “A Nation Of Virtuous Individuals” in which he espouses widely held conservative views of the law and patriotic views of the country.
By any measure, Harvard Professor Steven Pinker, who holds the Johnstone Family Chair of Psychology, is one of the most influential intellectual leaders in the world. He is also someone who believes in robust intellectual discourse and free thought and speech. That propensity for academic freedom has now made him a target of hundreds of academics and graduate students who are seeking his removal from the Linguistic Society of America. The letter is one of the most chilling examples of the new orthodoxy that has taken over our academic institutions. The signatories seek his removal for holding opposing views on issues like underlying causes of police shootings and other research. The cited grievances are at best nuanced and at worst nonsensical. Yet, hundreds signed their names and academic affiliations to try to punish a professor for holding opposing views to their own. We have been discussing these cases across the country including a similar effort to oust a leading economist from the University of Chicago. It is part of a wave of intolerance sweeping over our colleges and our newsrooms — a campaign that will devour its own in the loss of academic freedoms and free speech. (I should note that I do not know Dr. Pinker and, to the best of my knowledge, I have never met him).
Below is my column in The Hill on the increasingly common rationalization that looting and property damage is a long-standing tradition first embraced by the Sons of Liberty in the Boston Tea Party. That historical analogy was very popular in the days before the Fourth of July. A professor made the comparison on CNN on the Fourth. The view is widely raised in universities like the column in the University of Arizona’s Daily Wildcat newspaper declaring “The Boston Tea Party was when we first saw looting as a form of protest in America. White people acting out in anger is literally celebrated in our history books.” Likewise, at the University of Dayton last week, a column stated “There is something to be said when our White founders destroying British property in the Boston Tea Party is glorified in every textbook, but burning down a Target for the rights of African Americans to simply breathe is damned in the media.”
It is a revisionist historical argument that is as convenient as it is wrong. While the Framers would have supported the vast majority of protesters who engaged in peaceful demonstrations for reform and racial equality, the Sons of Liberty would have been the first to denounce the concept of wanton property destruction or looting as a means for social change.
There is a controversy raging at the University of Cambridge after English professor Priyamvada Gopal posted a June 23rd tweet that “White Lives Don’t Matter.” Thousands signed a petition to have Gopal fired but the university has correctly stood by her free speech rights. The question should not be whether Gopal is fired, but the virtual certainty that she would have been fired in many universities if she made the same comment about other races. As a blog focusing on free speech, we have repeatedly discussed the investigation and termination of professors for controversial statements on social media. The greatest concern is the lack of any consistent or coherent protection of free speech in universities. Free speech dies with doubt as to what will be the subject of toleration and what will be the subject of termination. That is why bright line rules are maintained by courts in this field that specifically bar content-based viewpoint discrimination from the government.
I previously wrote about my concern with the prosecution of rioters for arson under federal rather than state law. Now a new case about of Wisconsin further shows the federalization of these crimes with seemingly no interstate elements. Devonere Johnson, 28, has been charged with extortion after he went into Cooper’s Tavern near the state Capitol building with a megaphone and a bat to demand money and free food and booze in the name of Black Lives Matters. There is no question that his conduct was worthy of a criminal charge but the federal charges again raise concerns over federalism and state police powers.