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Steve Shiffrin
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Although he agrees with the result, Cornell Law Professor, Michael Dorf exclaims that Justice Breyer’s majority opinion in the recent Texas license plate case (Walker v. Texas Div. Sons of Confederate Veterans) is “so badly reasoned that it cannot be taken seriously.” See here. In that case, Texas refused an application for a license plate with a Confederate flag on the ground that it was offensive. The relevant part of the licensing scheme was one in which “sponsors” submitted proposals for new specialty license plates including a draft design and a nomination for the government agency that would receive funds derived from the plate. The relevant statute provides that the Department of Motor Vehicles Board shall design the license plate in consultation with the applicant. It may refuse the proposal if the contents of the plate would be offensive to any member of the public or if the nominated agency... Continue reading
Posted Jun 21, 2015 at
The recent case of Elonis v. United States involved the publication by Elonis of threats on a Facebook page (dressed up as rap lyrics) directed against his wife, co-workers, a kindergarten class, and members of law enforcement. Elonis argued that the First Amendment protected his rap lyrics, e.g., “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.” But the Court avoided the First Amendment issue by concluding that the jury instructions were defective because they authorized conviction if the communication would cause a reasonable person to believe a threat had been made regardless of the speaker’s intent. The Court ruled that negligence was an insufficient... Continue reading
Posted Jun 10, 2015 at
What should the word religion mean in the First Amendment? The Pew Forum recently released the results of a survey revealing that nearly 23% of Americans describe themselves as religiously unaffiliated – as atheist, agnostic, or more typically “nothing in particular.” See Pew Forum. Should this mean that this group should receive no protection under the Free Exercise of Religion Clause of the First Amendment? I leave aside the fact that the majority of this group believes in God, but does not affiliate with an institutional church. The Free Exercise Clause should centrally be read to protect freedom of conscience whatever its source. When government forces someone to do something they feel morally obligated not to do or forbids someone not to do something they feel obligated to do, a just system would recognize that this burden on freedom of conscience is at least regrettable and often impermissible. Sometimes burdens... Continue reading
Posted May 25, 2015 at
U.S. News and World Reports claims to perform a service for students when they rank schools. In fact, the rankings are harmful to students in significant ways. It is not just that the academic rankings are marred by those who game the system and by the fact that everyone who ranks the schools has only fragmentary knowledge of the schools they rank. Much more serious is the impact of the weight the magazine gives to the grade point averages and test scores of the admitted students. In order to compete on these measures, first undergraduate schools and in the last decade law schools are spending millions of dollars throwing money at students who will help their average GPA or test scores in order to hold their U.S. News ranking or to move up in the rankings. The result, of course, is that students who do not get merit scholarships are... Continue reading
Posted May 11, 2015 at
Saturday, Neesa and I went to watch the St. Louis Cardinals play the Cincinnati Reds with our youngest son Jacob. Around the third inning Neesa turned to me and said: “I have never seen so many white people in one place.” There were many black employees, but it wasn’t until the sixth inning that I saw a single African-American fan. Of course, there were many more, but the largest racial group in St. Louis is African- American, and it was obvious that African-Americans are not supporting the team in the numbers one would expect or that one might see in Chicago, New York, or Los Angeles (the latter having I would argue the most racially diverse crowd in baseball). So what is the problem? Until Neesa spoke, I did not notice what many African-Americans know very well. See here. In 2014 there were no African-American players on the Cardinal team... Continue reading
Posted Apr 19, 2015 at
Liberals think it obvious that evangelical Christians should not have a constitutional right to discriminate in hiring or in deciding which customers to serve on the basis of sexual orientation. I agree with these conclusions, but I think the question whether good faith religious liberty claims should be respected in the case of customer discrimination should be regarded as a closer question than most liberals would concede. It is not that I have appreciation for the religious position taken by evangelicals. I enjoyed a sermon on Easter by a Methodist minister who said she regarded those who discriminate on the basis of sexual orientation as wolves masquerading as the Lamb of God, and she found it hard to believe that Jesus died on the cross, so that Christians could discriminate against people on the basis of who they love. Nonetheless, religious liberty claims should not be dependent on whether we... Continue reading
Posted Apr 8, 2015 at
The announcement that Chuck (Mr. Wall Street) Schumer has been tabbed to lead the Democratic Party in the Senate is a vivid reminder that the Democrats have been captured by big money. The Democrats can talk economic populism, but those who bankroll the campaigns call the shots. This is not a new development. Citizens United aggravated the problem, but the Democratic reliance on business financing goes way back. It is certainly more than 30 years old. Indeed, I am looking forward to reading The American Three-Party System: Hidden in Plain Sight which details the intrusion of the Corporate Political Party into the Democratic Party. Robert Kuttner himself has a good account in his 2008 book The Squandering of America of the corruption of the Democratic Party by big money. Kuttner for many years has observed that the Republicans have a natural fundraising advantage. Their deregulation message is just what business... Continue reading
Posted Mar 30, 2015 at
Much of the time I have thought that Peggy Noonan is a notch above Fox News, but integrity was tossed to the winds in her Saturday column in the Wall Street Journal. There in discussing Hillary Clinton’s use of a private e-mail account instead of a government account, she suggested that this was yet another instance of Hillary Clinton acting as if she were above the law. One wonders if Noonan read the Wall Street Journal’s report on the issue on March 5 which concluded that Clinton’s email arrangement was legal, a conclusion that was reiterated by the Journal the same day as Noonan’s column. On the other hand, Clinton was obligated to retain and hand over documents to the State Department. She did not do this until 2014, a year after she left office. Much has been made by some of this, but Clinton was not alone. When she... Continue reading
Posted Mar 8, 2015 at
Last week Pulitzer Prize winning reporter James Risen tweeted that the “Obama Administration is the greatest enemy of freedom of press in a generation.” See here. This may well be true. Certainly, the Obama Administration is no friend of the press. In Risen’s case, it used subpoenas to secure his credit-card reports and records, travel records, and bank records to determine who the source of one of his stories might be, and it argued that the First Amendment provided no protection for confidential sources. As I have previously discussed, this harassment of reporters has not been confined to Mr. Risen. See generally here. In addition, the campaign against the leakage of information embarrassing to the Administration extends to the whistleblowers who provide the press with the information. The government recently prosecuted Jeffrey A. Sterling for providing information to Mr. Risen. It claimed that national security was compromised in a story... Continue reading
Posted Feb 22, 2015 at
Ross Douthat’s New York Times column of February 1 is so clearly wrong that you have to wonder what led him astray. Douthat’s inspiration is an article by Jonathan Chait complaining of a rise in political correctness connected with various forms of identity politics. From this, Douthat takes a leap over a chasm of evidence to the conclusion that the left’s energy is cultural, not economic. He attributes this perceived development to the decline of the Occupy Movement, to the control of Congress blocking liberal economic proposals especially those that involve redistribution, and to the success of the same sex marriage movement which leads those on the left toward the conclusion that cultural efforts based outside of Washington can be successful. What’s wrong with this picture? It isn’t wrong in believing that efforts to combat discrimination on the basis of race and sex are important components of progressives. It is... Continue reading
Posted Feb 8, 2015 at
When Republicans argue that it is a bad idea for government to spend money on infrastructure except for an oil pipeline, you can be sure that you are hearing the voice of corruption. When you hear Republicans tell you that climate change does not exist, some are presenting the voice of corruption; others are captured by the voice of ignorance. Ross Douthat who is often perceptive (albeit on the wrong side of the political fence) took on the voice of ignorance in the Sunday New York Times. The column was provoked by another essay of ignorance, penned by Jonathan Chait. Chait’s essay on PC (see here) has been pounced upon throughout the blogosphere. Chait objected to the tendency of women and people of color to denounce others as racist and sexist. Some of the examples he parades are worthy of criticism. But he goes awry in fundamental ways. He claims... Continue reading
Posted Feb 4, 2015 at
A few weeks ago, I wrote a post which addressed the question whether Christianity paved the way for liberalism. See here. I maintained that Christianity in fact played a stronger role than is suggested by the account which grounds liberalism in the Enlightenment rejection of Christianity, but suggested that the relationship between Christianity and liberalism needs fuller exploration. Meanwhile Andy Koppelman has reminded me that Charles Taylor has a subtle account of the relationship in his magisterial A Secular Age. Indeed, Koppelman has an excellent review of the book in Dissent which was published in 2009. See here. As Taylor describes it, the rise of liberalism grew out of the turn of Christianity toward this world and toward an emphasis on human flourishing. With this emphasis, it is easy to see how God might drop out of the picture. As Koppelman puts it, the “this-worldly ethos” did not need God.... Continue reading
Posted Jan 25, 2015 at
In case you missed Dana Milbank's excellent column, see Continue reading
Posted Jan 13, 2015 at
Typepad HTML Email Mike Thanks again. I think the examples show that the distinction I am using is under inclusive and does not cover enough speech, not that ideas worth preserving are being suppressed (though I admit Matsudas definition could be applied in ways that would be problematic). Many Europeans would say that Matsudas approach is too narrow. For example, Matsudas approach would not reach to cover denials of the Holocaust. I think there are some contexts in which her approach might be too narrow. One might argue in the Skokie case that Jews were historically oppressed, but are no longer oppressed though still an object of discrimination in some quarters. I have forgotten how she handles that. In Skokie, what matters to me is the degree of offense and the potential for violence. Finally, I believe context matters. Despite what I have said, if demonstrators show up outside a Mosque parading images of the prophet, I would think an action for intentional infliction of emotional distress should be countenanced. By the way, I read your post at dorfonlaw. I entirely agree and will share it on facebook.
Typepad HTML Email Mike Thanks for the comment. I wonder what you think of the argument that discussions of religious doctrine filled with hate are different from denunciations of groups on the basis of character traits. So there is a difference between saying the Jews were responsible for the crucifixion of Jesus (wrong-headed and harmful as that position has been) and saying that Jews are greedy etc. I also wonder what you think of the argument that we can be more confident that stigmatizing statements about vulnerable groups on the basis of racial or ethnic background are less valuable than statements about religious doctrine however hateful. I also wonder if my post is consistent with Matsudas view that hate speech is speech with a message of inferiority, that is directed against a historically oppressed group, and that is persecutorial, hateful and degrading I am thinking it might be consistent with it because statements about religious doctrine are not directed against a group. For example, I passionately despise Christian fundamentalism, but I need not harbor hatred for Christian fundamentalists by that fact. My basic intuition is that passionate, hateful statements of religious doctrine may have value, value not shared by criticism of Jews or Muslims in general.
The radical Muslim cleric Anjem Choudary asks in USA Today why France permitted the tabloid to provoke Muslims. He suggests that everyone knows that Muslims are required to impose capital punishment on those who insult Mohammed. See here. Of course, his rendition of the obligations of Muslims is sharply contested. Sarah Harvard has a persuasive retort in Slate. She argues that violence in response to insults of Mohammed are not called for in Islam; indeed, she suggests that blasphemy laws are not called for either. Nonetheless, those who insult Mohammed are surely aware that the possibility of violence by extremist individuals or groups is not trivial. Consider the threats against Salman Rushdie, the killing of Theo Van Gogh in response to his film on women and Islam, and the assassination attempts on the Danish cartoonist Kurt Westergaard. They should also be aware, as Choudary says, that a large segment of... Continue reading
Posted Jan 11, 2015 at
Larry Siedentop’s new book, Inventing the Individual: The Origins of Western Liberalism is the subject of a provocative review by Samuel Moyn, a Professor of Law and History at Harvard University in the current issue of Boston Review. If much discussion of Anglo American liberalism has focused on some version of the social contract to provide a normative justification and to motivate allegiance to liberalism, Siedentop has been interested in French liberalism which has tried to provide an account of how liberalism came to the fore. So, as Moyn puts it, Siedentop treats “modern individualism as a historical product rather than a natural fact.” And here comes the heart of Siedentop’s claim: He argues that Christianity played a decisive role in making liberalism possible and that historians have wrongly downplayed the roots of liberalism in the Christianity that flourished in the Middle Ages. Moyn’s reaction to this claim is quite... Continue reading
Posted Dec 30, 2014 at
The Ferguson prosecutor now admits that he presented a witness he knew was lying to the grand jury, but maintains the witness was not taken seriously. Of course, what he did was a breach of professional conduct and it could open the way for the appointment of a special prosecutor. "Under Missouri law (MO Rev Stat § 56.110) the presiding judge of the court with criminal jurisdiction — in this case Judge McShane — can appoint another prosecutor if the prosecuting attorney demonstrates a conflict of interest or bias. Courts have interpreted this provision broadly to include 'conflicts that reveal themselves through the prosecutor’s conduct in the case.'" See here. It seems to me this rule is too narrow. District Attorneys have a daily working relationship with the police. Their failure to aggressively pursue cases against police almost automatically gives rise to the appearance of impropriety. Moreover, there is a... Continue reading
Posted Dec 22, 2014 at
In her Saturday Wall Street Journal column, Peggy Noonan insists that the Senate torture report should not have been published, but reserved for public officials. She apparently regrets that the world will think less of us. In support of this, she recounts a story in which she and pollster Bob Teeter were puzzled by the fact that Americans do not like the Japanese even more than they do not like the Germans. Then in what apparently was a eureka moment they arrived at the conclusion that the Japanese resort to torture in WWII could account for the distinction between the Japanese and the Germans. But wait, the Germans perpetuated the Holocaust. Is there a moral distinction that makes Japanese torture worse than the Holocaust? It apparently does not occur to Noonan that race might have something to do with the dislike for the Japanese. This is not to deny that... Continue reading
Posted Dec 15, 2014 at
In her Saturday Wall Street Journal column, Peggy Noonan purportedly writes about the prospects for Republican unity and purpose. In the end there is a lot of gloating about the divisions, handwringing, and skirmishes within the Democratic Party. Noonan believes the Democratic Party is hopelessly divided. She is right, but the problem goes well beyond her focus on the unpopularity of Obama, Reid, and Pelosi, and it is a problem not likely to be discussed by Peggy Noonan. The problem is of long standing. One its better discussions appears in Robert Kuttner’s almost thirty year old book, The Life of the Party. As Kuttner then argued, for all their difficulties the Republicans have an important luxury: their underlying free market, low tax ideology is attractive to the wealthy who invest in election campaigns. On the other hand, the Democrats’ populist commitments (I will assume they have them though many may... Continue reading
Posted Dec 7, 2014 at
Here is a great post by the Reverend Jeff Hood on the rhetoric attempting to control the demonstrators in Ferguson. A sample: "I don't think you can have an honest conversation about race in our nation when you are always telling people to calm down." And: "I felt like many of the clergy I encountered functioned as appendages of the ruling class." Continue reading
Posted Nov 28, 2014 at
Typepad HTML Email Annelise Thanks for your dead on comment and for the link. I particularly like the honest conversation about race quotation which as you probably know is linked to a terrific Huffington Post piece by Jeff Hood. I dont know anything about him except that his is a great post. Thanks Steve
Typepad HTML Email Thanks Clark Steve
Shortly after the Ferguson grand jury announced its decision Monday night, President Obama said: “We need to accept that this decision was the grand jury's to make. There are Americans who agree with it, and there are Americans who are deeply upset, even angry. It's an understandable reaction. But I join Michael's parents in asking anyone who protests this decision to do so peacefully.” See here. I am bothered by the statement that we need to accept that this decision was the grand jury’s to make. I read that as an appeal to the rule of law. But the rule of law is not merely procedural; the rule of law should not be construed to include blatant miscarriages of justice rooted in racism. It should not be construed to include denials of probable cause when probable cause so clearly exists. It should not be construed to include executions in the... Continue reading
Posted Nov 26, 2014 at
A recent Princeton study by Martin Gillens and Benjamin I. Page concludes that the U.S. no longer has a democracy. “Using data drawn from over 1,800 different policy initiatives from 1981 to 2002, the two conclude that rich, well-connected individuals on the political scene now steer the direction of the country, regardless of or even against the will of the majority of voters.” See here. Citizens, they say, have little independent influence. If Alexander Hamilton were here, he would tell us that this is the way it should be. The Constitution is designed to prevent the people from having their way. It is a fundamentally undemocratic document designed to prevent change. Alexander Hamilton argued in The Federalist Papers, No. 73 that making change difficult restrained the “excess of lawmaking” and “kept things in the same state in which they happen to be at any given period.” He argued that “the... Continue reading
Posted Nov 20, 2014 at