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Steve Shiffrin
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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
Did the last election endorse conservative ideas? James Drader thinks so, and although he is a mere County Republican leader in my area, he echoes a sentiment shared by Republican politicians across the country. It is odd that they think so. After all, Peggy Noonan a couple of weeks before the election criticized the Republicans for telling us what they were against, but projected no vision and had given the electorate no clue as to what they were for. Ironically, in her column she herself offered no suggestions as to the vision or programs the Republicans might recommend. And, of course, she was right. The Republicans made Barack Obama the issue in the 2014 election. And the Democrats ran away from him as well. Were there some conservative arguments made against him? Of course, but it is fantasy to suppose that the last election endorsed a conservative agenda. Despite the... Continue reading
Posted Nov 13, 2014 at
For many decades, the Republican Party has campaigned with thinly disguised racial appeals. Willie Horton is the poster child for the kind of appeals that have typified the approach taken by Republicans. They have tried to frighten voters with images of black criminals; they have suggested that the poor are lazy while stereotyping the poor as black. They have opposed affirmative action and have gone a long way to turn the Fourteenth Amendment upside down to constitutionalize their opposition. They have passed measures designed to undercut the right of blacks (and others) to vote. I would not claim that opposing President Obama and successfully making him the centerpiece of many Congessional elections was per se a racial appeal to the voters. After all, he is still the President, and most of the opposition to him has nothing to do with his race. But race has something to do with the... Continue reading
Posted Nov 4, 2014 at
In his Tuesday column, David Brooks announced to parents throughout the United States that if they are judging a potential son or daughter-in-law on political grounds, their “values are out of whack.” So I take it that if liberal parents have liberal children who are about to marry conservative evangelical members of the Tea Party, it should be a matter of indifference. Brooks always seems to write with a touch of smug arrogance, but the blindness of this conclusion is stunning even for him. Let’s leave aside family members for the moment. Let’s think of dinner companions. Would the tone of a conversation change if a table of liberals were joined by a passionate conservative? A table of liberals might make easy assumptions about capital punishment, the use of drones, the need for spending on infrastructure, the failure of the nation to care for the poor, and the immorality and... Continue reading
Posted Oct 30, 2014 at
The October 27th issue of the Nation has a terrific article: The Government’s War on Whistleblowers by Normon Solomon and Marcy Wheeler.The story powerfully details retaliation by both the Bush and Obama administrations against both whistleblowers and the reporters who tell their stories. In great detail, the Nation shows retaliation against New York Times reporter James Risen who won a Pulitzer Prize for reporting the existence and details of a secret domestic wiretapping program. The story was followed up by a bestselling book. Both recent administrations have sought to prove that Jeffrey Sterling, formerly with the CIA, was the whistleblower who provided Risen with the information. One of the obvious problems with the pursuit of Risen and Sterling is that it was initiated by the very people who were criticized in the reporting and the policies criticized have been continued by the Obama Administration. If a prosecution were contemplated at... Continue reading
Posted Oct 23, 2014 at
One of the hallmarks of a civilized political system is respect for the right of a fair trial. In the United States, the right to a trial by jury in criminal cases is regarded as fundamental to the American scheme of justice. If defendants are to receive a fair trial, assessments of their guilt or innocence should be decided in the confines of a controlled courtroom by an impartial jury, uncontaminated by the frenzy of a sensationalistic press barrage. Although our system of criminal justice has many significant deficiencies, the overwhelming majority of criminal defendants who go to trial are tried by a jury that has not been contaminated by pre-trial publicity. Their stories are not sufficiently newsworthy to garner press attention. But some defendants are not so lucky. In their circumstances, the press is eager to publish all the evidence they can find without regard to the effects on... Continue reading
Posted Oct 20, 2014 at
In his book, Save the World on Your Own Time, Stanley Fish takes the position that faculty may not advocate political or moral views in the classroom. Indeed, he claims that if “an idea or policy is presented as a candidate for allegiance –aided by the instructor, students are asked to decide where they stand on the matter - then the classroom has been appropriated for political purposes.” If the primary purpose of the professor is to persuade the students to his or her point of view, then Fish has a point. But Fish goes further. He thinks the personal determination of professors and students as to what they believe should be no part of a university classroom life (though he thinks it permissible to evaluate particular pieces of discourse advocating policy positions). In teaching the First Amendment for many decades, along with many, if not most, law professors, contrary... Continue reading
Posted Oct 16, 2014 at
In a recent symposium in the Illinois Law Review, Jason Mazzone maintains that many, if not most, Constitutional Law articles in laws reviews are principally advocacy pieces. He contends that these articles are not scholarship. He insists that law professors should engage in the same kind of research and writing employed in other departments. See here. (For interesting commentary by Paul Horwitz, see here). In so arguing, Mazzone puts forward the most recent echo (though he does not go quite as far) of the insouciant claims of Stanley Fish, who insists that professors in universities should confine themselves to politically neutral academic discourse. I think it worth observing that advocacy pieces in Constitutional Law have counted as scholarship in American law schools, and the narrow conception of scholarship recommended by Mazzone and Fish borrowed from other disciplines has long been rejected in American law schools, not to mention some other... Continue reading
Posted Oct 12, 2014 at