Category: Administrative Announcements

stairway-to-heaven-1319562-m-720x340
1

FAN 48 (First Amendment News) The Dangers and Values of Offensive Speech

 If you want the minority and Danish majority to live together in peaceful ways, you have to ask if hate speech is fruitful. — Carsten Jensen (Danish author and political columnist)

In Mumbai, India a newspaper was shut down recently and its editor arrested for reprinting a 2006 Charlie Hebdo cartoon of the Prophet Muhammad weeping. According to a New York Times story, such “news coverage often conflicts with the government’s efforts to protect religious groups from insult and disrespect.” One of those who filed a police complaint was Nusrat Ali, a reporter. “You are free to write anything in our country, but you are not free to hurt religious sentiments,” he said. “Why would [Shirin Dalvi] print something that has caused tension and violence across the world?” he asked. “Publishing such cartoons threatens the peace and calm of our country.”

Professor Geoffrey Stone

Professor Geoffrey Stone

Legitimate concerns, real dangers. Ask yourself: what if those dangers became more likely and imminent here? How strong would our commitment to free speech be? Mindful of that, in a thoughtful Huffington Post piece  titled “Charlie Hebdo and the First Amendment,” University of Chicago Law Professor Geoffrey Stone asks:

Are there any circumstances in which the government can constitutionally silence a speaker because others threaten violence if the speaker is allowed to proceed? Consider an extreme hypothetical. Suppose ISIS threatens to behead six American hostages if anyone in the United States publishes or otherwise displays the Charlie Hebdo cartoons. Can our government, consistent with the First Amendment, make it a crime for anyone to do so? The Supreme Court has never faced such a case. What do you think?

Okay, how’s this for starters? — The proposed law seems to codify the heckler’s veto (or, more aptly put, a terrorist’s veto). Even before we venture to answer Professor Stone’s question we would have to assume that such a law would be precise and narrowly tailored, this as a constitutional threshold matter. That said, is the gravity of the threatened evil so great as to relieve the government of its constitutional obligation to, in Professor Stone’s words, “take every possible measure to prevent the violence before it may silence the speaker”? If so, would not the terrorist’s veto almost always trump the speaker’s First Amendment rights?

Terrorism is just bullying, extreme bullying. — Bill Maher (Jan. 2015)

Among other things, Professor Stone’s hypothetical invites us to think hard about just how far down the free speech road we wish to travel when that path may lead to lethal dangers. However absolutist the defenders of free speech may be, even they have their limits as Pater Holmes made clear in his Abrams dissent.

The Values of Offensive Speech 

Ilya Shapiro

Ilya Shapiro

But there is more to this free speech debate than the dangers of so-called hate speech; there is also the question of the values, if any, of such speech. And that is the question that Carsten Jensen asks us to consider in the epigraph quote above.

Thankfully, a brief recently filed in the Supreme Court by the Cato Institute speaks to precisely that question. The amicus brief was submitted by Ilya Shapiro (counsel of record) and Robert Corn-Revere in Walker v. Texas Division, Sons of Confederate Veterans, the license plate case that will be argued next month.

Here are a few excerpts from their brief, which was recently filed with the Court:

 — Offensive Speech Contributes to the Marketplace of Ideas: “The borderlands of the marketplace of ideas are inhabited by ideas that unsettle and offend. Only those ideas that people are allowed to express can be freely traded, so a “free trade in ideas” cannot exist when some ideas are relegated to the black market. . . . Indeed, because offensive speech changes the parameters of the marketplace, it is as vital to the exchange of ideas as so-called mainstream speech. Without expanding the borders of the marketplace, a society may stagnate. If no one ever offensively says ‘the Emperor has no clothes’ then a society may be condemned to dynasties of naked emperors, and that would be truly offensive.”

And they quote Salman Rushdie, “who certainly knows something about offending people: ‘What is freedom of expression? Without the freedom to offend, it ceases to exist. Without the freedom to challenge, even to satirise all orthodoxies, including religious orthodoxies, it ceases to exist.'”

 Offensive Speech Fosters Self Expression and Helps Develop Personal Autonomy: “Expressing one’s deepest thoughts, feelings, and values is vital to defining oneself as a unique and autonomous individual. Those who are restrained from self-expression are often called ‘repressed,’ and years of therapy is often the cure. . . . Even more than ‘mainstream’ speech, offensive speech helps define us. Our commonalities do less to define our personalities than our eccentricities, offensive or otherwise. If speech is squelched by the government because it ‘might be offensive to any member of the public,’ then the government has closed off an important avenue for self-expression.”

There is more, much more, to this truly insightful (dare I say inciteful?) brief. In a legal world where amicus briefs too often add little beyond formulaic case-crunching, this brief is chock-full of value added, and for that reason I commend it to you.

Meanwhile, I leave you with the closing words of the Cato brief: “It would be offensive to the First Amendment for this Court allow Texas to tell us what is offensive. After all, one man’s offensive speech is another’s exercise of social commentary or personal expression.”

Is Flower v. U.S. (1972) still good law? . .  . & why that question is important 

On remand, the United States Court of Appeals affirmed Mr. Apel’s conviction, rejecting his First Amendment argument with no mention or apparent consideration of Flower v. United States. It seemingly accepted the argument made by the United States that Flower is no longer good law. — Erwin Chemerinsky, cert. petition in Apel v. United States (2015)

Read More

1

AALS Happy Hour — PrawfsBlawg, ConcurringOpinions, and American Society of Comparative Law

For those of you who will be at AALS this year, we plan to continue the tradition of having a joint Prawfs Concurring Opinions happy hour.  This year we will be joined by the Younger Comparativists Committee of the American Society of Comparative Law.

The happy hour will be Saturday, January 3rd at 8 PM.  We will meet in the Stone’s Throw bar in the lobby of the Marriot Wardman Park Hotel.

This tradition was started and spearheaded by Dan Markel, one of the many ways he helped bring people together.  We want this, like so many of his contributions, to continue on.

Here is Paul Horwitz’s announcement at Prawfs, with some nice words about Dan.

So please drop by and join us!

 

6

Welcome to Naomi Cahn

Cahn Naomi 02I am delighted to announce that Professor Naomi Cahn is joining Concurring Opinions to post here on a regular basis.  Naomi teaches at George Washington University Law School, where she holds the Harold H. Greene Chair.  She is involved in book, article, and law reform projects concerning families’ interactions and intersections with the law and gendered institutions, nationally and globally.  Her scholarship and teaching cover the entire lifespan, from pregnancy (and attempts to become pregnant) through death and inheritance.   Her co-authored book with June Carbone, Marriage Markets (OUP 2014),  about the relationship between family structure and marriage, was on the list of best books for 2014 issued by both The Economist and Newsweek.  Other ongoing projects include work on assisted reproductive technology and, with Rev. Amy Ziettlow, a book on elder care.   She has testified before Congress on adoption-related issues and  worked with the Uniform Law Commission to draft model legislation on post-death access to digital assets, and her work has been covered in media outlets ranging from The New York Times to the Wall Street Journal to The Christian Century.

Before joining the GW faculty, Naomi worked at the SEC, legal services, a large law firm, a small law firm, and Georgetown’s  domestic violence clinic.

Her areas of interest include Gender, Feminism, Family Law, International Women’s Rights, and  Trusts and Estates.

1

Introducing Guest Blogger Sean Williams

shw395-mediumI am delighted to welcome Professor Sean Williams, from the University of Texas School of Law, who will be joining us for a guest visit this month. Professor Williams writes in the areas of tort theory, family law, and behavioral law and economics.  He has examined the role of happiness research in tort awards, the implications of individual justice accounts of tort law for damages in wrongful death suits, and the empirical and philosophical justifications for allocating more safety resources to children compared to adults.  He has also examined bargaining dynamics between spouses in post-nuptial negotiations, the resilience of overly optimistic beliefs in marriage, consumer contracts, and employment relationships, and the broad legal implications of ambiguity aversion.

Prof. Williams graduated with High Honors from the University of Chicago Law School.  Before his appointment at the University of Texas School of Law, he was a Climenko Fellow and Lecturer on Law at Harvard Law School. Prior to his legal career, he analyzed large national datasets to uncover trends in teen pregnancy and risky adolescent behaviors more generally.

His recent publications include:

Probability Errors: Over-Optimism, Ambiguity Aversion, and the Certainty Effect, in The Oxford Handbook on Behavioral Economics and the Law (2014).

Statistical Children, 30 Yale J. Reg. 63 (2013).

Lost Life and Life Projects, 87 Indiana L. J. 1745 (2012).

Self-Altering Injury, 96 Cornell L. Rev. 535 (2011).

Sticky Expectations: Responses to Persistent Over-Optimism in Marriage, Employment Contracts, and Credit Card Use, 84 Notre Dame L. Rev. 733 (2009).

Postnuptial Agreements, 2007 Wis. L. Rev. 827 (2007).

You can find his ssrn page here.

Image Group Legal Academia 07
0

Legal Academia LinkedIn Group

I created a new LinkedIn group called Legal Academia for legal academics to share useful links, posts, scholarship, events, etc. Shameless-self promotion is welcomed — as long as what you promote is good.

Who Can Join?

Anyone can join — non-academics can join too if you want to follow along.

How Do You Join?

Go to the group’s page: Legal Academia . Just click the join button at the top of the page.

Who Can Post?

The forum will be moderated so that all posts will be by legal academics about their work, blog posts, conferences, and scholarship.  Administrators can post about law school events or notable happenings or issues.

What Topics Can You Post On?

Posts are not restricted to those about legal academia.   This forum might hopefully grow into a hub of information about notable activity in the blogosphere, scholarship, and elsewhere.  Please don’t promote every single blog post you write, but if you have written something noteworthy, please share it.   Please feel free to share the work of others too.

Why Join?

Academics have not embraced LinkedIn as much as they have Twitter, but there are some really great things about LinkedIn’s platform.  It is a way to get work noticed and read by practitioners.  Posts, although short, are not subject to Twitter’s Draconian character limit.  There’s a lot less noise on LinkedIn, so the forum can be a more focused place for promoting and discussing scholarship and information relevant to the academy.

In your settings, you can have a daily digest or weekly digest of the postings to the group emailed to you — or nothing at all.

So please join the Legal Academia LinkedIn group.  And please post, as the group won’t succeed if I’m the lone one posting.   Please don’t be bashful about pointing out new things that you’ve written.  That’s what this forum is for — to help everyone publicize and get more people reading and engaging with scholarship and academic discussion.  Thanks!

0

Introducing Guest Blogger Jeffrey Vagle

jvagleWe are happy to host Penn’s Jeff Vagle for the month of November.

Jeff is Lecturer in Law and Executive Director of the Center for Technology, Innovation and Competition at the University of Pennsylvania Law School. His research interests include cryptography, cybersecurity, electronic privacy, the mechanisms and societal effects of surveillance, Internet architecture, and networked economies and societies. He most recently served as an associate in Pepper Hamilton’s Privacy, Security and Data Protection Group. He earned his JD from Temple University School of Law, where he was Editor-in-Chief of the Temple International and Comparative Law Journal. Jeff writes and speaks regularly on privacy, data security, surveillance, and other cyberlaw-related topics, and is the author of several law review and technical articles, including, most recently, “Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance,” forthcoming in the Indiana Law Journal.

0

And I’m Back – Deven to GA Tech, Scheller College of Business

I joined the Scheller College of Business at Georgia Tech in August. Some have asked (or speculated as law professors seem to do) about my choice. As those who know my past might see, I go where I think the best work is possible. My scholarship dives into business and technology literatures. GA Tech is excellent in both areas. I took the interview and the position with the hope that I could go deeper into these fields. And, as I hoped, it is great here. Peter Swire is my office neighbor. My group in law and ethics is smart and fun. Throw in friends like Stu Graham, and excellent professors in marketing (can you say more branding?), strategic management, information technology management, operations management, organizational behavior, accounting, and finance, and it is a field day. Folks here are pursuing data analytics, IT and supply chain, behavior and identity shaping by branding, and more. Chats have already pointed to me books and articles for my next set of papers. And that is just at Scheller. I am connecting with the engineers and public policy folks too. Not to mention that friends at Emory, GA State, and Georgia law are near, and I am overdue to visit them. So why move? The opportunity and resources make it a high quality problem place: so much to do and so many people with whom to connect that picking is difficult.

With a summer hire and move, blogging has not been active. Plus, I find that I am bursty (if that is a word). A few ideas pop up and blog posts fly. Then things seem less interesting for a bit. In any event, I think I have a few posts up my sleeve. See you in the funny papers, err blogosphere, as Hawkeye Pierce would say.

0

Introducing Professor Marc Roark

Marc Roark

Marc Roark teaches Property, Commercial Law,  Law and Literature, Law and Society, and Law and Religion at Savannah Law School.   Before joining the faculty at Savannah Law School, Professor Roark held appointments at the University of Missouri, the University of Tulsa, and the University of La Verne.

Marc is a well-known Property scholar, and has appeared nationally in interviews by NPR and MSNBC News.   His articles include Homelessness at the Cathedral (Missouri Law Review) and Payment Systems, Consumer Tragedy, and Ineffective Remedies (St. John’s Law Review). You can sample more of Marc’s articles at his SSRN page.

Marc is currently working on a book project titled unPopular Property, describing the intersection of property and identity in outlier cultures.  He is also working on an article articulating the need for human impact statements as a part of public and private land development.

Welcome Marc!

0

U Delaware Chaplin Tyler Lecture

I’m honored to be giving this lecture at my alma mater, and thanks go to Charles Elson for the opportunity and Kim Ragan for organizing the event.  It’s the first in the book tour that will take me to many other great universities with thanks to many more wonderful colleagues nationwide.  More details as they are finalized.

Poster U Delaware-page1