Scott Shackford at Reason noticed it first, the sudden appearance of myriad op-eds arguing against free speech “absolutism.”

This week, The Washington Post joins several other large media outlets in giving commentary space to an academic who thinks the First Amendment maybe shouldn’t protect so much free speech.

I’ll give Jennifer Delton—Skidmore College’s “Douglas Family Chair in American culture, history, and literary and interdisciplinary studies”—this much: She’s not disguising her calls for censorship of conservative opinion by claiming this will achieve some sort of racial enlightenment or equality. She openly describes this censorship as a tool for stopping the spread of political arguments she sees as dangerous.

The title given to Delton’s polemic reflects not just a peculiar take, but a very bold attempt at using the big-lie theory to make her case. Continue reading →

When charged with crimes, some consider themselves defendants while others hold themselves out as martyrs to the cause. Former Diablo College adjunct philosophy prof, Eric Clanton, is the poster boy of the martyr.

My name is Eric. I’m currently facing years of prison time as the result of accusations made in the most shockingly hateful parts of the internet. On April 19th I began being targeted by a dedicated swarm of internet trolls known for spewing racism, xenophobia, and misogyny onto the web. Suddenly a hit piece by Milo Yiannopolis caused the targeting to go viral. Several old social media photos were posted, online accounts hacked, addresses published, hundreds of calls to my employers, and countless threats of physical violence made against me, my coworkers, friends and many others. This harassment campaign is where the accusations against me originated.

That’s the view of life of the martyr. The retelling, however, isn’t quite accurate. He’s not facing prison time as a result of accusations, but as a result of hitting a guy on the head with a metal bike lock for being a Trump supporter at a Berkeley protest. Continue reading →

On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States (the Committee) considered the petition filed by United States District Judge John R. Adams seeking a review of an Order of the Judicial Council of the Sixth Circuit (Judicial Council) finding Judge Adams committed misconduct as understood within the meaning of the Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351-64, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) (amended Sept. 17, 2015). See here for a well-written and thorough news article summarizing the matter and here for the rulings of the Committee and the Judicial Council.

The Committee made a decision of first impression that is both extremely important and yet chilling:

In this matter of first impression under the Judicial Conduct and Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings, we reject Judge Adams’s constitutional and statutory challenges to the Judicial Council’s finding that he committed misconduct and directing him to undergo a mental health examination. For the reasons discussed, the Act and the Rules authorized the Special Committee’s request that Judge Adams submit to such an examination, the Special Committee was justified in making the request based on its findings concerning Judge Adams’s behavior, and Judge Adams’s objections to the examination do not justify his failure to cooperate in the investigation.

Committee Opinion, at pages 38-39.

However, the Committee reversed the Judicial Council’s decision stripping the judge of his cases for two years. The Committee wrote: Continue reading →

Not long ago, I started seeing people on twitter with blue check marks next to their name. Back when, Twitter used these marks to verify that a user was who she claimed to be, so that others could distinguish the real twitterer from parody or poseur. Of course, the person who needed the blue check would be someone whom others would want to identify as the real deal.

Then, the twitter gods shifted their goal posts a bit, using the blue check to signify that someone was “important,” worthy of the validation of those undeserving of a blue check. Some blue-check twitterers were people without a great many followers. Some were users whose twits weren’t particularly insightful or interesting. Some were downright dolts about whom no one cared. Suddenly, however, they were important people because they sought a blue check from twitter and were validated. If you weren’t one of them, at least you now knew who mattered (and it wasn’t you).

Then there were the people with blue checks who held positions of prominence. Whether they were writers for important soapboxes or judges for high courts, movie stars, the professor and Maryanne, you were now merely one degree of separation away from them. And they were no longer isolated within their bubble, but could collect followers, likes, retwits, to prove to themselves they were relevant and adored.

What’s curious about these new rules of who matters and who does not is that there was little concern about whether they had anything thoughtful or useful to say. Texas Supreme Court Justice Don Willett* has almost 95,000 followers on twitter. How many of them are familiar with his rulings is a mystery, but they know he’s really Justice Willett because he’s got the blue check and twits stuff like this: Continue reading →

Remember when the only source of political speech and information were major media conglomerates with tons of important journalists who received prestigious prizes? Speech was serious, as they wore serious faces as they told it to us. Speech was moderated, as there was no one on air to call bullshit, or would dare use such a vulgar word in such a refined world. And speech was credible, because we were told to believe these people. After all, if they weren’t credible, they wouldn’t be given major media soapboxes to inform us of reality.

UC/Irvine lawprof Rick Hasen yearns for those days.

The rise of what we might call “cheap speech” has, however, fundamentally altered both how we communicate and the nature of our politics, endangering the health of our democracy. The path back to a more normal political scene will not be easy.

In the old days, just a handful of TV networks controlled the airwaves, and newspapers served as gatekeepers for news and opinion content.

He contrasts an old law journal article by none other than Eugene Volokh, predicting the democratization of speech. Continue reading →

Dr. SJ and I were married by Acting Supreme Court Justice Levitan. The judge’s first name was Shirley, and we were friends. She had invited me to call her by her first name outside the courtroom, but I never did. She was always Judge Levitan to me. It never felt right to be so familiar, as I didn’t know her before she was a judge and Judge Levitan was a judge. I was not.

So the story told by former Chief Justice of the Georgia Supreme Court, Leah Ward Sears, was shocking.

Leah Ward Sears, former Chief Justice of the Supreme Court of Georgia, said people often assumed that her husband was the judge when they traveled together. Today, she said she is treated differently than other retired justices who are men.

“At least down south, when you retire, you maintain the word judge or justice,” said Sears, now a partner at Smith, Gambrell & Russell in Atlanta. “Judge Griffin Bell was always Judge Griffin Bell, even when he’s at King and Spalding.”

“When people encounter me, they don’t know what to say,” she said. “I’ve been in groups of all retired judges, and it’s Judge this, and Judge that, and then, Leah.”

Justice Sears earned the title. Why would anyone not show her the respect she deserved? Continue reading →

There is bit of controversy about the removal of statues honoring the confederacy. Is it southern heritage or an homage to slavery installed during the Reconstruction and civil rights era? Is it a slippery slope, with Maryland removing Supreme Court Chief Justice Roger Taney’s bust because he authored the hated Dred Scott decision? He wrote some other decisions, too, in his 30 years as chief justice.

There is a sound argument that this isn’t, or at least need not be, a slippery slope. We can distinguish people who are “honored” for their acts of racism versus those who have statues for accomplishment, but who were also flawed people.

Then again, they destroyed a statue of Christopher Columbus. Genocidal rapist or “discoverer” of America, which itself is problematic colonization? And rather than leave the question to a deliberative body to decide, some guys just smashed it in the dark of night. Will our capital be located in the District of Tubman?

The problem with the sound argument against the slippery slope is that it relies on a thoughtful analysis. Mobs are singularly ill-suited to thoughtfulness. If one applies chaos theory to the past, nobody looks very good. Not slaveowners Washington and rapist Jefferson. Continue reading →

He’s a visiting prof scholar* at Dartmouth at the moment, but he’s no kid.** That explains the remarkable similarity in appearance between Mark Bray’s “The Antifa Handbook” and Wobbly pamphlets of yore. The guy knows history.

Antifa: The Anti-Fascist Handbook Paperback – August 14, 2017

Only $13.95 on Amazon (in paperback, natch). Customers who bought this book also bought black pants, shirts and masks. The reviews aren’t entirely flattering, however.

All this explains is how to tie a towel around your head and to be offended by everything. It did have a great chapter in how to fight a trump supporter with bong water and food stamps.

Then again, there’s a good chance this isn’t a legit review, which explains the comments to it: Continue reading →

The time is ripe for some easy and empty rhetoric to capture the passionate hearts and blank minds of the crowd. And Andy Cuomo, the Governor of New York, wants to get him some.

“Our diversity is our strength and this legislation will help protect New Yorkers and send a clear signal that violence and discrimination have no place in our society,” Cuomo said in a statement.

It’s hard to argue with the sentiment and so what kind of horrible human being would you have to be to not gush, “yes, oh yes,” in furtherance of this lofty goal?

Gov. Andrew Cuomo wants to crack down on hate-fueled rioting in the aftermath of the violence in Charlottesville, Virginia last weekend. Continue reading →

California Democrat Zoe Lofgren has proposed a new law that puts the screws to the president.

A  new bill introduced in the House of Representatives would require President Donald Trump to undergo a physical and mental health exam to determine if he is stable enough to stay in office.

Rep. Zoe Lofgren (D-Calif.) introduced the bill on Friday. Should the results of the said exam be unfavorable, the bill calls for Vice President Mike Pence and members of the Cabinet to remove Trump from office.

The move would invoke the 25th Amendment, a rarely-used constitutional provision that allows the vice president and a majority of Cabinet members to jointly remove the president from office and replace him with the vice president.

The bill doesn’t propose a law, but a resolution directed solely at Trump, because, well, dementia happens.  Had this been handled artfully, Lofgren could have put the president in an untenable position, either refusing to be evaluated to prove he’s not demented or being evaluated, which would be potentially disastrous. Continue reading →