Chait’s Big PC Risk

In the team sport of politics, few things are more poorly tolerated than a traitor.  It’s one thing for, say, George Will to question politically correct speech, but when a former liberal champion like Jonathan Chait does so, all hell breaks loose.

In a long-form article for New York Magazine, Chait took to task the ugliness of the new political incorrectness that had a few minutes in the sun in the late 1980’s, when feminist lawprof Catherine MacKinnon proclaimed herself Speech Queen for a Day.

MacKinnon’s beliefs nestled closely with an academic movement that was then being described, by its advocates as well as its critics, as “political correctness.” Michigan had already responded to the demands of pro-p.c. activists by imposing a campuswide speech code purporting to restrict all manner of discriminatory speech, only for it to be struck down as a First Amendment violation in federal court.

In Ann Arbor, MacKinnon had attracted a loyal following of students, many of whom copied her method of argument. The pro-MacKinnon students, upset over the display of pornographic video clips, descended upon Jacobsen’s exhibit and confiscated a videotape. There were speakers visiting campus for a conference on prostitution, and the video posed “a threat to their safety,” the students insisted.

It’s back. Who are its victims and victimizers, however, remains a matter of which team you’re on, and even then, whether one is sufficiently attuned to the nuance of the moment as to what words are permissible and what must be stricken from the lexicon.

Chait’s article is long, meaning it goes in all sorts of directions, some good, some bad, some sound, some facile, some reflecting the hypocrisy of the self-loathing liberal and some reflecting the hypocrisy of the true believer.  It’s a mess.

And Chait’s article almost instantaneously drew harsh reactions. At Student Activism, Angus Johnston smacked Chait around for complaining about how PC speech impaired free speech, since both are just speech. At Talking Points Memo, fem Amanda Marcotte took her patented approach of mischaracterizing Chait in really poor prose:

The irony begins to collapse in on itself and form a black hole from which no self-awareness can escape with this sentence: “It is likewise taboo to request that the accusation be rendered in a less hostile manner. This is called ‘tone policing.’” Got it. Demanding that someone adopt more P.C. language to step around the sensitivities of liberals is unconscionable, but demanding that lefties on Twitter adopt a softened tone to step around the sensitivities of Jonathan Chait is just good sense.

Chait raised “tone policing” as one of the phenomenon occurring, though Marcotte misstated it as one of Chait’s “demands.” At Gawker, Alex Pereene milks his liberal antagonists for lulz:

So, here is sad white man Jonathan Chait’s essay about the difficulty of being a white man in the second age of “political correctness.” In a neat bit of editorial trolling, New York teased the column with [the] following question: “Can a white, liberal man critique a culture of political correctness?”

The answer, as anyone with internet access or a television or the ability to see a newsrack could tell you, is a resounding yes, they can and pretty much constantly do. But the second half of the question, and the real point of the column, was left unwritten: Can a straight, white man do this without having to deal with people criticizing him for doing so? The answer, in 2015, is no, and that is what has Chait’s dander up.

Why he says the second question is “the real point” isn’t clear, as is his claim that Chait’s “dander” is up.  It seems obvious that Chait would anticipate blowback, and his dander is where it’s always been. At the same time, watching the other team beat up on Chait brings smiles to McKinnon’s disciples.

But without having one’s finger on the pulse of the inside baseball of liberal PC politics, it can be hard to follow these attacks, or appreciate the motives behind them. For those of us who truly couldn’t care less about who will win the most politically correct person of the year award, one reaction to the substantive points in Chait’s article seemed to wrap it up.

The response comes from lawprof Corey Rayburn Yung, who has been a bit noseblind to his own political bias because he, like so many others, suffers from the “I’m not biased; I’m right. The other guys are biased because they’re wrong.”  As much as I like Corey otherwise, he suffers this massive blind spot when it comes to his own views. That doesn’t make him unique, but it also doesn’t relieve him from the prejudice of his politics.

At Concurring Opinions, Corey breaks down his beef with Chait in a concise and clear fashion:

After learning from discussions with many people holding views similar to Chait, I have had some success in distilling the problems of offensive speech to simpler terms. I call it the “don’t be an asshole” rule. It lacks nuance, I admit.

Nuance, schmuance. I consider this a feature rather than a flaw. In fact, it was the first rule here.

The applications of “don’t be an asshole” are many. Here are just a few:

Don’t yell “fuck” in the middle of a wedding ceremony or funeral.
Don’t fart in someone’s face.

Kind of gross, but sure.  Definitely poor form.  And for the benefit of the logic-impaired, this does not mean Corey approves of farting in the deceased’s face while yelling “fuck” at a funeral.

Don’t post your ex-girlfriend’s nude pictures online.

Unless she asked you to.  Why she would do so is beyond me, but then again, why people take nude selfies and send them to people they barely know is beyond me too.

Don’t name your sports team an offensive ethnic slur.

Which would make more sense if it happened after the name was roundly condemned as an offensive ethnic slur, rather than at a time when things like this and this were considered proper viewing for children. Today, they are considered patently offensive. It’s hard to rewrite history with all those football jerseys out there.

Don’t call women “sluts” even if you believe in your heart-of-hearts that you also call promiscuous men “sluts.”

While not up there with basic life rules like don’t fart in someone’s face, okay. I fail to see what calling promiscuous men “sluts” has to do with anything, though. While that rationalization finds favor with younger people, it fails the relevancy test for those of us who aren’t easily goaded. If you’re ugly, my being ugly doesn’t make you less ugly.

Don’t use ethnic, religious, homophobic, racial, sexist slurs.

Absolutely. Though who decides what words are forbidden slurs seems to be the problem, not the admonition not to use them.  I tried to make a list once, but I didn’t have enough RAM.

Recognize that you might be racist, sexist, homophobic, or otherwise bigoted and not know it.

This is a surprising faux pas for Corey. We are all bigoted, whether we know it or not. That he uses “might be” suggests he has yet to come to the realization that not even the most PCist among us is pure.

Listen charitably.

Fair enough, but at what point does charitable listening turn to “get real.” We can give everyone the benefit of the doubt until they had said or done something to make that a foolish and unreasonable assumption.  To say listen charitably is fine, but naïve. At some point, charitable listening turns to foolishness.

And if someone calls you are [sic] a racist, sexist, bigot, etc., the “don’t be an asshole” rule even has a course of action to take:

Step one: Apologize.
Step two (optional): Thank the person for letting you know (assuming you don’t want to be an asshole in the future).
Step three: Don’t be an asshole again.

This isn’t the “don’t be an asshole” rule (at least not mine). This is a variant of the “heckler’s veto,” that someone screams bigot and therefor you must be one. Nope. First, there’s the problem of the PC prigs who whine that anyone who doesn’t adore them is some flavor of bigot, reducing it to meaninglessness.

But the overarching question is who decides? An obvious answer is in the first comment to Corey’s post:

Let me try to simplify further: “don’t do or say things that Corey Yung finds offensive.” Have I nailed it?

Of course, it’s not just Corey. Every self-proclaimed champion of social justice is entitled to condemn without challenge, with all the potential for internal conflict that ensues.

But as Angus Johnstone notes, so what? This is all speech.  Free speech for all, including free speech to counter free speech, to challenge free speech. So what?  And he’s right, unless, of course, the proponents of political correctness demand laws against free speech, like bullying, harassment, hate speech and revenge porn.  Or a law embodying Corey’s “don’t be an asshole” rule. But the politically correct would never do that because they love free speech as much as they hate Jonathan Chait.

24 thoughts on “Chait’s Big PC Risk

  1. Richard G. Kopf


    Great piece, Scott.

    Regarding Corey Rayburn Yung’s first rule which I sorta like (Don’t be an asshole), what if you truly have no intention of being an asshole and don’t know you are being an asshole ’cause words and context have no meaning when the only thing that matters is grievance?

    By the way, I don’t know Mr. Yung. I see that he clerked for Mike Melloy between 2004 and 2006. I know Mike. He is not an asshole. From that connection, I am willing to assume that Mr. Yung is not an asshole. He is just insufferably young just as I am insufferably old.

    All the best.


    1. SHG Post author

      Thanks, Judge. Corey is by no means an asshole. In fact, he’s pretty darned smart, and tries very hard to be the honest broker. He just has a bit of a blind spot when it comes to his own politics vis-à-vis everyone else’s. But there’s an epidemic of grievances these days. Fortunately, it only afflicts the young, so we’re safe.

    2. Corey Rayburn Yung

      Hi Judge,

      I’m a bit late seeing this, but I wanted to reply. I dare say that Judge Melloy might win “Kindest Person on the Bench” if there was such an award. I learned a lot from him which is (hopefully) reflected in my scholarship about judging which tries to shift academics away from a strictly realist/political account of how judges decide cases. And I feel like my post, which Scott takes some issue with, is consistent with something else Judge Melloy always demonstrated to me: respect and empathy. I clearly used more profane terms, but I was hoping to find some common ground between those who fear political correctness and those who believe offensive speech misshapes American culture. Whether I succeeded is for readers to decide. Nonetheless, I do think there is room for agreement in treating other people better if we remove the politically and socially charged elements that have dominated discussions of so-called “political correctness.”


      1. SHG Post author

        Nonetheless, I do think there is room for agreement in treating other people better if we remove the politically and socially charged elements that have dominated discussions of so-called “political correctness.”

        Corey, when you write something like this, I can’t figure what you’re thinking. You haven’t removed the politically and socially charged elements; you’ve simply decided that one team wins and that’s your team. I know you believe in being charitable, but you’ve conceded nothing and demanded an apology for the pleasure.

        Surely, you must see this? Empathy and respect are wonderful personality traits, but they’re personality traits, not rules and certainly not laws to be demand of, or imposed on, others.

        And what’s with coming here to chat with the old judge-guy? What? He wears a robe and I’m chopped liver? Where’s my respect?

        1. Corey Rayburn Yung

          Hi Scott,

          I’ve chimed in your comments before, but this time you were being too nice to me for me to take much issue. 🙂 Besides, as a long time reader of Hercules and the Umpire, I want to respond to the judge’s mention of my (wonderful) former boss.

          I don’t know what you mean by “demanded an apology” which might cause me to misinterpret your meaning. I don’t, for instance, think Chait owes anyone an apology. What I do think is that there is a greater connection between using “Redskins” as a team name and yelling “fuck” at a funeral than is currently appreciated. I say this as someone who grew up in the DC area and has a family that cheers “Hail to the Redskins.” Yet, out here in Lawrence, KS, home to one of the country’s great American Indian colleges (Haskell) and a law school with a wonderful group of American Indian students, “Redskins” is treated as a slur. I think it would be beyond-the-pale rude to call one of my students a “Redskin” regardless of political correctness concerns. I was hoping to convey that opposing Daniel Snyder’s decision to keep the name doesn’t have to entail general support for so-called “political correctness” beliefs or causes. My “don’t be an asshole” rule is a profane attempt to illustrate a different motive for opposing the mascot name.

          My goal is try to try to find some common ground where even anti-PC folks might recognize that certain speech should be abandoned even if you don’t buy into larger concerns about how offensive language shapes culture in negative ways. The endless battles over PC have always been futile, IMO. I’m a pragmatist – I’m searching for ways to lessen the use of offensive speech by appealing to possible areas of agreement. I may not succeed, but I do think there is something to be said for trying to de-politicize a lot of issues of concern to me: race, gender, sexual orientation, diversity, etc.


          1. SHG Post author

            Most of your examples, at least to some extent, are best characterized as common courtesy. No big deal, as I said. It was when you got the race, gender, etc., and concluded under your rule that the only response of being called a racist is to apologize that you highly politicized your point.

            Mary Anne Franks calls me a misogynist because I disagree with her scheme, her lies and her intellectual dishonesty in trying to claim there are no 1st Amendment problems. Should I apologize to her because she would rather call me a name than have to confront her flagrant dishonesty? Or should she apologize to me?

            1. Richard G. Kopf

              Corey and SHG,

              Several random thoughts. (Note to RGK: Don’t forget the sticky notes!)

              First, Mike Melloy is one of the most descent persons in the universe and a great judge. I am glad for Corey that he had the opportunity to learn from Mike. I suspect that Mike’s lack of ego and empathy for others is a product of his Iowa background and his unusual experiences in the military, as practitioner in Dubuque, as a bankruptcy judge, as district judge, as a Chief District Judge and as a Circuit judge.

              Mike serves as a prime example of the good that can come from Corey’s “don’t be an asshole” operating instruction. As I said, I like Corey’s instruction as a general matter. Indeed, I intend to put it on a sticky note on my bench next to the one that reminds me to “shut the fuck up.”

              Second, Scott is right to suggest that calling people names because of some perceived slight or allegedly mistaken position has become all too frequent in big parts of the legal profession, and most particularly in the Academy. When Scott decries absurd rape statistics on college campuses, that does not make him a misogynist.

              Finally, the great strength of Scott’s approach to blogging is the raw intellectual honesty that pervades most of his writing. The fact is that the great bulk of us lack the talent, the intellectual courage, and the stamina to constantly look for bullshit and then call it what it is. That admitted, I intend to to put yet another sticky note on my bench. It will remind me to ask this question, if only to myself: “Would SHG call that bull shit?”

              As I reread what I have written, it sounds like so much pap. That’s Ok, I suppose, because it is Saturday and the weather is terrible (snowing and raining). My depressive personality is showing more than a little. In other words, this is about the best I can do for today.

              My best to you both.


            2. Corey Rayburn Yung

              Hi Scott,

              I read through your post about Mary Anne Franks, but didn’t see where she called you a misogynist. I might have missed it. It might have been a tl;dr problem on my part.

              I have followed some of the exchanges in the past between you, Franks, Citron, and Bennett. And I can certainly say I have seen some patronizing and demeaning language used in the direction of Franks and Citron. In particular, I am thinking of Bennett’s post about basic First Amendment lessons and the aftermath of it. You might disagree with Franks and Citron on the First Amendment issue, but I find their view defensible (even as I have spoken with Franks about an alternate statutory approach that would surely survive First Amendment challenges). Until SCOTUS recognized the kiddie porn exception to the 1st Amendment, most people would have thought it was crazy (it was easier to make it part of the already existing obscenity exception). I still think Randy Barnett and others were crazy for advocating the action/inaction distinction in the ACA cases after Comstock allowed federal civil commitment of sex offenders based only on the necessary and proper clause. But Barnett’s view got 5 votes. Franks and Citron have a view of the First Amendment that would be less of a revolution than either of those, in my opinion. Yet, Bennett didn’t originally engage their argument and instead talked down to them. So, while I don’t know the context of accusations of the misogyny, I do think their views have been been treated uncharitably.

            3. SHG Post author


              It would be one thing for Franks/Citron to argue that the Supreme Court should make a new exception to the First Amendment to cover revenge porn, but that’s not what they argue. They argue that it conforms to existing First Amendment law, which is clearly does not. While we can disagree about the virtues of their position, which I think after Stevens is slim to none, that hasn’t been the argument.

              They have promoted it in non-lawyer websites as having no potential First Amendment implications, calling it a “myth.” That’s flagrant intellectual dishonesty, to lie through their teeth to non-lawyers. Are you good with lying?

              Or what about the claim that Eugene supported their law, which magically disappeared because he didn’t? Are you good with that too? Where is the line where you won’t be blinded by your ideology and you are willing to call out lies?

              As for being dismissive or condescending (or ad hominem), you apparently haven’t read the initial comments from Mary Anne toward Bennett and have gone straight to the back end of the situation. Read this post, and the comments at Co-Op linked here and here, and at Josh Blackman’s post, and Mary Anne’s twits.

              You’ve put your integrity on the line here. Bear that in mind. When lie down with dogs, you get up with fleas, Corey.

            4. Corey Rayburn Yung

              Hi Judge,

              Thanks for reply .

              As for the college sexual assault stats, I often lament the low-quality of the data that exists. But if you actually want to compare the methods and data, the study showing that 1 in 5 women are sexually assaulted (using a definition broader than criminal law) is actually the best we have. I’ve been working on a post about the different data sources for rape and sexual assault for a couple of months (at, but haven’t posted it yet. In large part the delay is because I’ve been talking to those who have created one of the data sources about some significant inconsistencies in the data. But I think it is fair to say that there are far greater sample size and methods problems in the studies showing lower rates of sexual assault. Hopefully I will finish the post soon as I want to at least offer a primer for anyone on what the different studies are measuring (because that accounts for large portions of the differences in results).

              As coincidence would have it, though, I have a peer-reviewed study out today about how universities have been substantially undercounting sexual assaults based upon review of their data before, during, and after Department of Education audits (press release is here: So, I definitely disagree with Scott on that issue.

            5. SHG Post author

              While your comment is bizarrely non-responsive to anything Judge Kopf said, and you violate my rule against links in comments, particularly self-promotional links, I decided to post this comment just because your press release is so awful.

              “When it comes to sexual assault and rape, the norm for universities and colleges is to downplay the situation and the numbers,” said researcher Corey Rayburn Yung, JD, a law professor at the University of Kansas. “The result is students at many universities continue to be attacked and victimized, and punishment isn’t meted out to the rapists and sexual assaulters.”

              This would be the DoE for whom every accused is presumed guilty and undeserving of due process under the DoE “Dear Colleague” rules? And you join in calling them rapists and sexual assaulters in the absence of being proven guilty? But you say you’re not biased, unlike those who you disagree with?

              Corey, you based your undercounting conclusion on Department of Education audits? The folks whose definition of rape and sexual assault is as radical and bizarre (I know, you think it’s great, but I mean everyone outside of radical feminists and academics) as possible? Why would you possibly waste your time this way?

              What this informs me is that you keep drifting farther and farther from empirical scholar to ideologue. So yes, we definitely disagree. Rape is not something a women feels six months later when she decided that the two beers she drank before consensual sex negates her decision and reduces the male to a rapist. Yes, I realize the DoE says it is. But it’s not.

            6. Corey Rayburn Yung

              Hi Scott,

              The reason I mentioned Randy Barnett and the ACA cases was precisely because he and others argued that existing commerce clause and necessary and proper clause cases supported their view. With Comstock having just been decided a couple of years previous, I think that view was (and is) 100% wrong. In the interest of disclosure, I did help out the FPD’s who worked on Comstock. Jack Balkin, who thought Barnett was completely wrong on the doctrine, nonetheless defended him as doing what an advocate should do – normalizing a radical view. I wrote an essay about the dozens of instances in federal criminal law punishes inactivity while advocates for the Barnett position repeatedly said the insurance mandate was “unprecedented” in the media, scholarly publications, and every forum they were in.

              Franks and Citron defend a view about the 1st Amendment that is less radical, in my opinion, than the ACA view that won 5 votes. As Balkin convinced me, legal revolutions happen because of rhetorical normalization that argues a particular view is consistent with current case law and not antithetical to it. So, I don’t feel that Citron and Franks are at all dishonest. My own practice is to avoid such advocacy, but I don’t fault others for engaging in it.

              As I mentioned, though, from a pragmatic perspective, I worry that Franks and Citron’s efforts will ultimately fail because judges won’t agree with their 1st Amendment view. Instead, I thought the more realistic option (although I dislike the underlying statute) is to apply the federal pornography reporting statute to hosts as well as distributors. The ironic thing is that my suggestion would eliminate far more speech (because very few hosts have copies of all of the actor ID’s to prove they are adults) but would easily survive constitutional challenges because of existing 1st amendment doctrine.

              I’ll read through the links you posted – I only followed the exchange via Twitter (of which I haven’t been on all that long) and might have missed a bunch.

            7. SHG Post author

              You raise an interesting problem for when academics turn advocates, but seek to use their academic cred to further an advocacy position. You can’t have it both ways. If an academic wants to put their scholarship on the line for a cause, and is prepared to wallow in the gutter to get it done, then they don’t get to hide behind their academic position when they get called on it.

              While Citron hasn’t been nearly as bad as Franks, Franks has been caught in a multitude of specific lies (such as the Gene Volokh lie) and has used her putative academic standing (which, I’m told, couldn’t get much lower) to bullshit her way out of it by dismissing those who question her as her intellectual inferiors unworthy of response.

              But that said, there is a huge distance between claiming to be a First Amendment Scholar and representing an advocacy position to be above scrutiny to non-lawyers, and advocacy. When she put her academic rep on the line for her advocacy, and got called, and denied it using her academic rep to deflect and lie, then she’s a liar.

              And a point often missed by academics who are confused by the nature of advocacy: the most important thing an advocate has is integrity. Contrary to the Balkan’s view of advocacy, it is not a free pass to lie.

            8. Corey Rayburn Yung

              As for my reply to Judge Kopf,

              I’m sorry about the hyperlink – I think I stopped reading warnings long ago. The Internet just seems to be one big blur to me some days.

              The contents of the press release aren’t mine and I would have written it differently. Unfortunately, the study is behind a paywall (although I have a late draft on SSRN). One of the greatest shortcomings of peer review publications is the lack of access which allows for people actually reading the study instead of media interpretation of it.

              I didn’t reply to the rest of Judge Kopf’s comments because I didn’t really have much to say – I just wanted to mention the rape stats issue because it happens to be where much of my attention is focused these days.

              As to the DoE, I have major issues with the legality of the Dear Colleague letters (which I don’t think deserve legal deference). However, it is also unclear who is writing them or how they are related to the audit process (which is also why they don’t deserve deference). My study shows that when schools are being audited (or resolving an audit finding), they report 44% higher rates of sexual assault than before or after the audit. Penn State, which is not in the study, reported a ridiculous increase 1389% increase in sexual assaults in the 2 years following the unprecedented scrutiny they received because of Jerry Sandusky. You have actually cited articles relying on the DoE data to prove sexual assault rates are low. My study shows that the DoE data (which is simply collected by the DoE but is basically raw counts submitted by schools) normally understates the problem which doesn’t fit your narrative about how schools are treating these cases.

              And I will agree with your view that the DoE definition is overly broad in one sense. They include 4 categories of sexual assault. The first 3 are entirely comparable to rape in jurisdictions without force requirements. The last category, forcible fondling, includes various forms of assault and battery that would not likely be deemed “sexual” in any criminal court. I wish the DoE would break the data down by category because that is how the schools submit it. Knowing how many incidents are in the first 3 categories would be very helpful in differentiating rape, sexual assault, and other assaults on campuses. The fourth category likely includes mostly criminal conduct, but to such a different degree that grouping it with the other 3 is extremely problematic.

              As I said, I hope to write more about the data in the near future. Right now, though, I think you really too much on secondary source statements about what the studies say and measure. Emily Yoffee’s article at Slate was the fairest, in my opinion, but still made a couple major errors. A lot of the other stuff you have linked to is just completely wrong. My post(s) will include, to the degree possible, the definitions actually used in the studies and advantages and disadvantages to different methods. Hopefully, you might discover that a lot of what you have read about rape data is inaccurate.

              I’m off to teach (the Road to the Exclusionary Rule).

            9. SHG Post author

              A lot of the other stuff you have linked to is just completely wrong.

              The NCVS? Most of the people who disagree with me try to rip the Yofee article to shreds. Glad to hear you think it was the fairest. As for errors, it seems like there is someone who finds/claims errors in every study, and I’ve come to believe that the nature of what these surveys are trying to assess precludes accuracy, given the ideological bias involved. Or to put it another way, the untethering of definitions across the board of rape and sexual assault has resulted in it being impossible to determine meaningful prevalence. But then, those using it as an advocacy position really don’t care. Right or wrong, true or false, they demand (their special flavor) of justice, and will do anything they have to do to get it.

            10. Corey Rayburn Yung

              Hi Scott,

              I am heavily conflicted about the academic/activist problem. My own belief has been and probably still is that academics are best when they strive for intellectual honesty/truth. Yet, that is particularly difficult in law where advocacy of an intellectual position is often closely linked with an activist position. As I mentioned, Jack Balkin, who I admire greatly, convinced me to be more forgiving of the approach used by Randy Barnett in the ACA cases. So, for the time being, I’m avoiding judgment of those that view the connection of academia and activism differently than I do.

              Concerning rape stats, it is actually the NCVS data that has held up my post. In 2013, the NCVS retroactively changed their data to include serial offenses whereas they had previously counted no more than 1 offense per person. At first blush that seems reasonable. However, the effect on the data was bizarre. In 2007, there were 0 serial offenses counted. In 2008, with approximately 5% of those surveyed reporting serial offenses, the count of sexual assaults nearly doubled. That’s because their sample size of households that actually report rape is ridiculously small. If just 1 or 2 people report serial encounters, the yearly number goes up substantially. They also stopped reporting additional tables after 2008 which allowed the data to be broken down by gender of victim and specific crime (rape, attempted rape, or sexual assault) at the same time. I’ve spoken with the head of the group there and have been trying ways to make the data apples-to-apples from 2001 to 2012. Unfortunately, I’m not satisfied with the techniques I have tried to make the data consistent.

              The Slate article is far from perfect but is one of the only ones to recognize different things are being measured in each study. Most of the hack-jobs being posted just mix-and-match data to fit their stories.

  2. Mark W. Bennett

    Mr. Yung, I don’t know you other than through your comments here, but when you say, “Bennett didn’t originally engage their argument and instead talked down to them,” I know you as a liar.

    Here is my first post ever mentioning Mary Anne Franks: Four days later I engaged their arguments (such as they were at the time) in even greater depth:

    Did I also talk down to them? Possibly; I’m a trench lawyer, so I enjoy freedom a) to show my contempt for small-caliber legal minds; and b) to not give a fuck about your tone policing.

    With arguments like ““I think resistance to these laws can arise from a variety of factors. Some people – including some lawyers, much to my surprise – are just uneducated about the First Amendment and really seem to think that it protects all forms of expression.… But then there’s a whole category of people who aren’t confused at all – let’s call this the ‘threatened sexist’ category,” (Franks) and “Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished,” (Citron), neither’s writing would pass muster in the Texarkana Court of Appeals.

    I don’t know if I have read their latest, but their proposals and arguments are moving targets, with a “model” statute that has quietly changed over time. Citron and Franks disagree with each other on the most basic point of whether intent to harm is a necessary element. They have proposed a farrago of bad justifications for revenge-porn statute. If they said, “we expect the Supreme Court to recognize an additional category of unprotected speech to uphold this statute,” they would be honest but optimistic. Instead they suggest, among other things, that revenge porn is unprotected because it is obscenity (risible) or because it is purely private speech (risible and dangerous).

    Which of those proposals, and which of those arguments, is it that you “find defensible”?

    P.S. You mention “an alternate statutory approach that would surely survive First Amendment challenges.” I’ll believe it when I see it. Bring it on.

    1. Corey Rayburn Yung Post author

      Hi Mark,

      This is the post I was referring to: I did not realize there were prior interactions/posts, but I also did not say it was your first encounter. Instead I just said “Bennett’s post about basic First Amendment lessons and the aftermath of it.” I realize that I later said “originally” in describing the post, but only meant the first post in the series (and not first ever). My goal in saying “originally,” which clearly failed, was to recognize that you did subsequently engage their argument in a more substantive manner. Nonetheless, if you think my omission of referencing other discussions created a false or negative impression, for that I apologize.

      I do feel, however, that my assessment that the post included “patronizing and demeaning language” is accurate. You said “Laypeople don’t know that Citron is wrong and have no reason to doubt this bald assertions, and fellow academics are afraid of being called names for challenging zealots…” I realize that you and Scott both use harsher rhetoric to make your points. However, from my perspective, saying that they only made “bald assertions” and calling them “zealots” while implying they don’t understand “First Amendment 101″ is “patronizing and demeaning.” You might disagree.

      The purpose of my comment was simply to give context to what I knew about Scott’s prior interactions with Franks. It just happened that your initial post and followups to it was most prominent in my mind. I will look through some of the prior posts that you and Scott have linked to (and others on your blogs).

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