Category: Education

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Law as Beauty

Law book illustrations serve many practical purposes. Yet they also can be items of simple beauty. Our gallery tour closes with books in which the bridge between abstraction and the real—the two polarities at the heart of legal experience—opens onto a view of the aesthetic.

In this magic space of the imagination, law gives birth to art that stands on its own.

These books gently overflow the boundaries of law as a field of knowledge and the law book as a category of publishing. They thereby pay tribute to law and to the publishing of books as endeavors that implicate our deepest humanity. Read More

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FAN 169.1 (First Amendment News) FIRE calls on Brandeis President to reinvite playwright to present controversial Lenny Bruce Play

disclosure: I was one of the signatories to this letter to Brandeis University’s President. 

Press release from Foundation for Individual Rights in Education:

An open letter to Brandeis regarding the cancellation of Lenny Bruce-inspired play, ‘Buyer Beware’

Ronald D. Liebowitz                                                                                                           November 13, 2017
Office of the President, MS 100
Irving Enclave 113
Brandeis University
415 South Street
Waltham, MA 02453
781-736-3001

URGENT

Sent via U.S. Mail and Electronic Mail (president@brandeis.edu)

Dear President Liebowitz,

Ronald D. Liebowitz, President of Brandeis University

We are a group of free speech advocates with a resilient interest in comedian Lenny Bruce’s life and legacy. We write to you today because we are concerned by recent reports that a play scheduled to be staged this month at Brandeis University was postponed and subsequently abandoned, in part because it utilized material from the university’s Lenny Bruce archives — material that some within the university found “challenging.” We call upon Brandeis to reaffirm the principles of freedom of expression, inquiry, and debate upon which any institution of higher education must be based, and to commit itself to engaging with the challenging material in the play by staging it as intended — not censoring it.

It is our understanding that the play, “Buyer Beware,” written by celebrated playwright and Brandeis alumnus Michael Weller, uses excerpts and ideas from Lenny Bruce’s routines as catalysts for a fictional debate about free speech on Brandeis’ campus. Lenny Bruce’s comedy has long been both controversial and groundbreaking. During his lifetime, he was subjected to six obscenity trials, purportedly for words that today are regularly used in all forms of artistic expression. These prosecutions left Bruce bankrupt and unable to work before dying in 1966 at the age of 40. “We drove him into poverty and bankruptcy and then murdered him,” said Vincent Cuccia, one of Bruce’s New York prosecutors. “We all knew what we were doing. We used the law to kill him.”

[Ronald D. Liebowitz, Oct. 26, 2016: Lenny Bruce exerted an impact upon his contemporaries and successors like no one else in his field, and his influence on comedy and well beyond comedy continues today. . . .  It is quite appropriate that Brandeis, with our motto of truth even unto its innermost parts, is now home to the personal papers of an individual who deeply believed in that same ideal, even to the point of persecution. We are honored to have been chosen as the keepers of this historic collection . . . . ]

Americans have since recognized the injustices dealt to Bruce. He was the last comedian to be criminally prosecuted for obscenity in the United States. Today, Bruce is revered as a champion of free speech and First Amendment principles — so much so that he was posthumously pardoned by New York Governor George Pataki in 2003. His life story serves as a cautionary tale of what happens when we censor artistic expression.

Playwright Michael Weller

Given this history, the undersigned are sensitive to the possibility that Bruce’s words may again be censored. Our unease is amplified by the fact that such censorship may occur at Brandeis University, named after the staunch free speech advocate and United States Supreme Court Justice Louis Brandeis. Our concern is all the greater insofar as the university is the institutional custodian of the Lenny Bruce archives and much of Bruce’s legacy.

A 2004 box set of Bruce’s comedy was titled “Let the Buyer Beware.” Perhaps not coincidentally, “Buyer Beware” is also the title of Weller’s play. Surely when Brandeis accepted the responsibility of preserving Bruce’s archives within its library, it well understood the risks associated with doing so — caveat emptor — and tacitly, if not explicitly, agreed that it would spare Bruce the injustice of committing or enabling his posthumous censorship.

In a statement responding to the cancellation of the fall production of “Buyer Beware,” Brandeis announced that “faculty members considered the challenging issues [the play] raised” and decided that more time was needed to produce the play “appropriately.” The statement goes on to relinquish the university’s responsibility for the play’s subsequent cessation by foisting responsibility upon Weller, who did not approve of this more “appropriate” production, which subsequent reports indicate was not even presented to him. According to a statement from the Dramatists Guild of America and the Dramatists Legal Defense Fund, Weller “has heard only indirectly about the possibility of doing it at ‘a 60-seat black box theatre in Watertown that has some lights, and a budget for one or two professional actors.’”

Kitty Bruce (daughter of Lenny Bruce & signatory to letter)

Numerous reports indicate that the decision to forestall the planned production of “Buyer Beware” comes amid a concerted effort by some Brandeis students and alumni to cancel the play. The campaign was allegedly led by a Brandeis alumna, who reportedly admitted to having never read the play’s script, yet claimed that it “is an overtly racist play and will be harmful to the student population if staged.” Scholars of Bruce’s life know well that attempts at prior restraint are insidious and beget more censorship. Indeed, after Bruce was first prosecuted in one court, additional prosecutions soon followed. “Don’t lock up these 6,000 words,” Bruce pleaded to one New York City judge during a court hearing.

We write to ask for more details about Brandeis’ decision to cancel this month’s production of “Buyer Beware.” What material, exactly, did the university consider too “challenging” for its students and faculty? And why, when an agreement could not be reached with Weller to find a more “appropriate” setting for the play, did the university decide not to stage the production as intended, and instead defaulted to functionally censoring the “challenging” material instead of openly engaging with it?

comedian Penn Jillette (signatory to letter)

We call upon Brandeis University to answer these questions in a manner consistent with the principles of freedom of speech to which the university claims to commit itself, principles that are integral components of Lenny Bruce’s and Louis Brandeis’ legacies. If it cannot, we ask you to immediately reverse the decision to cancel this month’s production of “Buyer Beware” and to reinvite Weller to stage it as intended. The play itself presents a direct challenge to the university —  according to The Brandeis Hoot: “If Lenny Bruce came to life right now, for one day, and he was booked for a gig on campus. How would the administration react?”

Again, we urge the university to commit itself to reinviting Weller to stage “Buyer Beware” as intended, thereby defending the very free speech principles for which Lenny Bruce fought throughout his life.

lawyer Robert Corn-Revere (signatory to letter)

To you, President Liebowitz, we repeat the question and also ask: Did the Lenny Bruce archives end up in the “appropriate” place?

We look forward to hearing from you by Friday, November 17.

Sincerely,

Foundation for Individual Rights in Education

Kitty Bruce
Daughter of Lenny Bruce
Founder, The Lenny Bruce Memorial Foundation

Penn Jillette
Comedian and magician, Penn & Teller

Robert Corn-Revere
Partner, Davis Wright Tremaine LLP
Attorney responsible for successfully petitioning Governor George E. Pataki to grant the first posthumous pardon in New York history to Lenny Bruce in 2003

Ronald K.L. Collins
Harold S. Shefelman Scholar
University of Washington, School of Law
Co-author, The Trials of Lenny Bruce

David M. Skover
Fredric C. Tausend Professor of Constitutional Law
Seattle University School of Law
Co-Author, The Trials of Lenny Bruce

Noam Dworman
Owner, Comedy Cellar

Ted Balaker
Director, Can We Take a Joke?, a film about the life and legacy of Lenny Bruce

Courtney Balaker
Producer, Can We Take a Joke?

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Stand, Sketch, and Deliver

Although the law is full of life, it’s a complex subject, and many people—shockingly—find it dry. That can pose a special challenge for students and teachers.

Illustrations can help address this obstacle—an obstacle created by language itself. They can serve as mnemonic devices for committing intricate rules to memory, and they can make legal study more enjoyable by enlivening a relentlessly textual enterprise with visual interest, and even some lightness of heart.

Nathan Burney’s Illustrated Guide to Criminal Law is a case in point:

Images like the ones Nathan created are the subject of the next stop on our digital gallery tour: our case “Teaching the Law.” And they’re significant not simply for law students. Read More

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Worth a Thousand Words

Sometimes a picture says it all. Or that’s what lawyers have often hoped. And beginning with the development of modern printing technologies, publishers have worked hard and well to oblige them.

The creation of lithography. Technical advances in etching and wood engraving. Anastatic printing. New iron presses. Steam-powered rotary cylinders. Photography. Starting in the nineteenth century, technological innovations such as these enabled law book publishers to depict places, objects, and events with greater accuracy than ever before—and lawyers soon perceived the value of images in crafting a winning argument.

Those images are the subject of the seventh case in our digital gallery tour, “Arguing the Law,” which features illustrations and photographs used as evidence in litigation. They are least symbolic, most literal, type of law book image.

They were used in intellectual property litigation (scroll over for links)

criminal prosecutions

Read More

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FAN 167.3 (First Amendment News) Campus Speech Debate Continues: Enter Nadine Strossen — Senate Testimony (8 Points)

Below is the text of the written testimony presented by New York Law School Professor Nadine Strossen to the Committee on Health, Education, Labor and Pensions on “EXPLORING FREE SPEECH ON COLLEGE CAMPUSES” – Thursday, October 26, 2017, 10 a.m. 

Introduction

Professor Nadine Strossen

I would like to thank Chairman Alexander and Ranking Member Murray for convening this hearing on such a critically important topic, and giving me the opportunity to participate.

Chairman Alexander has asked me to summarize the legal standards governing freedom of speech in higher education, “and what speech limitations schools may impose, particularly for so-called `offensive speech’ or `hate speech.’” I am honored to have the opportunity to do this, especially as I have just written a book directly on point: HATE: Why We Should Resist It With Free Speech, Not Censorship (Oxford University Press, May 2018).

Summary of the most important First Amendment principles – which are especially important on campus, for the education and empowerment of all students, including those who have traditionally been subject to discrimination, and those who are activists

The research and analysis reflected in my forthcoming book have made me more appreciative than ever of the two most fundamental general First Amendment principles, which are essential pillars of not only individual liberty, but also equality and democracy, including on our nation’s campuses:

  • the viewpoint neutrality principle, which bars government from punishing any speech based solely on dislike of its viewpoint, no matter how deeply or widely despised that viewpoint might be; and
  • the emergency principle, which permits government to punish speech when it directly causes specific imminent serious harm, such as constituting a genuine threat, targeted harassment or “bullying,” or intentional incitement of imminent violence.

These robust speech-protective principles have consistently been endorsed for many decades, by Supreme Court Justices across the ideological spectrum. The Court likewise has neutrally enforced these principles to protect controversial expression ranging across the ideological spectrum: from left-wing protestors burning an American flag, to right-wing demonstrators burning a cross. Just this past June, the Court ringingly reaffirmed the First Amendment’s protection even for hateful and hated speech, unanimously striking down a federal law that denied registration to trade names that “disparaged” particular individuals or groups. As the Court declared: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express `the thought that we hate.’” Matal v. Tam, 137 S. Ct. 1744, 1764 (2017), quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting).

In my capacity as a human rights activist, I am convinced, based upon the historic and current record, that these cardinal First Amendment principles are essential for furthering any political or social cause, including human rights. This conclusion is reaffirmed by examining how “hate speech” laws recently have been enforced in other comparable countries; they have disproportionately suppressed dissenting views and disempowered speakers.

Speaking in my capacity as a full-time educator for 33 years,* I am also convinced based on experience that these speech-protective principles are essential for effectively educating and empowering our nation’s future leaders and engaged citizens, and thus for maintaining a vibrant democracy. Being exposed to a diverse range of ideas, including those they consider “hateful,” and which they hate, is important for all students, including those who belong to groups that have traditionally been subject to discrimination or marginalization, and those who are engaged in activism on behalf of various causes. Therefore, when colleges and universities seek to punish controversial speech, or to shield students from it, they are not only violating the students’ (and others’) free speech rights, but they are also denying the students the rigorous education they deserve, and hence depriving our society of fellow citizens who are optimally equipped to participate constructively in our democratic self-government.

* The position of ACLU President is unpaid; while I served in that position, I continued to earn my living as an NYLS professor. Before joining the NYLS faculty in 1988 I began my teaching career as a clinical law professor at NYU Law School (1984-88).

Significantly, the preceding points have been strongly endorsed by politically diverse leaders who are members of minority groups, and who have themselves experienced the sting of “hate speech,” including former President Barack Obama. (Appendix A to this testimony includes quotations from him and from other ideologically diverse leaders who are all members of racial minorities, and who all oppose censorship of “hate speech,” including on campus, on the ground that such censorship would undermine equality and meaningful educational opportunities, including for minority students and student activists.)

List of key points discussed below

In the remainder of this written testimony, I will elaborate on the above themes by briefly discussing the following points:

  1. The Supreme Court has strongly enforced free speech principles on public campuses, including the cardinal viewpoint neutrality and emergency principles: that government may never suppress speech solely due to its disfavored viewpoint, but rather government may only suppress speech when it poses an emergency — e.,, it directly causes specific imminent serious harm, such as a “true threat,” targeted harassment, or intentional incitement of imminent violence that is likely to happen immediately.
  2. Many private campuses, which are not directly governed by the First Amendment, have chosen to protect the same free speech principles that are binding on public campuses, because such principles are consistent with academic freedom and sound pedagogy.
  3. “Hate speech,” which has no specific legal definition, may be punished (along with speech conveying any message) when, in context, it directly causes specific imminent serious harm. This means that hateful speech that poses the greatest danger of harm is already punishable, but such speech may not be punished when it is feared to pose a more speculative, attenuated risk of future harm.
  4. “Hate speech” laws are inevitably unduly vague and overbroad, thus leading to enforcement that is arbitrary at best, discriminatory at worst.
  5. The First Amendment protects the rights of peaceful, non-disruptive protestors. In contrast, any protest that prevents a speaker’s message from being heard constitutes an impermissible “heckler’s veto,” which violates not only the speaker’s rights, but also the rights of audience members who choose to listen to the speaker.
  6. The appropriate response to constitutionally protected “hate speech” is not censorship, violence, or disruption, but rather, “counter-speech,” which counters its ideas and any negative impact they might have. Our society must strive to provide access to educational and communications resources that will facilitate robust counter-speech, especially by and on behalf of the most vulnerable members of our communities.
  7. Equal rights movements are especially dependent on robust freedom of speech, including the viewpoint neutrality and emergency principles.
  8. Shielding students from hateful and hated ideas may well undermine their psychic and emotional well-being, as well as their education and preparation for effective participation in the workplace and the public sphere.

Brief discussion of these key points Read More

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FAN 167.2 (First Amendment Law) Campus Speech Debate Continues: Prof. Post Responds to FIRE’s Creeley

Yesterday, I posted Will Creeley’s Free Speech on Campus: A Response to Robert Post. Mr. Creeley’s piece was in response to a forthcoming article by Professor Post titled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Below, Professor Post replies to Mr. Creeley.

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Robert Post (Yale Daily News)

I very much appreciate Will Creeley’s excellent and eloquent post. In these times of overheated and exaggerated exchange, it is a relief to engage in such a thoughtful dialogue.

Creeley defends FIRE’s record of standing up for freedom of speech within university campuses. I have very little knowledge of the kind of cases that FIRE does or does not take, and I certainly do not mean to imply anything in particular about them. I mean only to attribute to FIRE what FIRE itself proclaims on its own website:

Freedom of speech is a fundamental American freedom and a human right, and there’s no place that this right should be more valued and protected than America’s colleges and universities. A university exists to educate students and advance the frontiers of human knowledge, and does so by acting as a “marketplace of ideas” where ideas compete. The intellectual vitality of a university depends on this competition—something that cannot happen properly when students or faculty members fear punishment for expressing views that might be unpopular with the public at large or disfavored by university administrators.

Nevertheless, freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy.

FIRE then proceeds to discuss the First Amendment in a manner that plainly implies that the “freedom of speech” it wishes to defend is the kind associated with First Amendment rights (even if such rights do not technically apply to private universities). This is also suggested by the reference to the “marketplace of ideas” in the passage I have just quoted.

I have not reviewed FIRE’s litigation, and I hope that Creeley will correct me if I am mistaken, but I suspect that in defending free speech rights on campus, FIRE rather routinely invokes standard First Amendment doctrines, like the prohibition on content and viewpoint discrimination, the prohibition on prohibiting speech because it is outrageous or offensive, and so on. Creeley does not dispute this in his statement, and I shall assume it to be true in this post.

The chapter to which Creeley objects was written to contest this rather mechanical application of standard First Amendment doctrines to the context of universities. The chapter begins by discussing the control of classroom speech to indicate how absurdly inappropriate such doctrines are to core university functions. I do not mean to imply that FIRE argues that content neutrality applies to the classroom. My point is merely that FIRE says that it upholds the application to universities of First Amendment doctrines, and such doctrines cannot sensibly be applied to classrooms.

Creeley affirms that FIRE has “never” argued that individual free speech rights apply to students in the classroom. I believe him. But the question is why FIRE has chosen not to defend such rights. I take it, and once again Creeley should correct me if I am incorrect, that the obvious answer is that endowing students with such rights is inconsistent with the university’s mission of education. But this is as much to say that the university’s educational mission trumps the free speech rights of individual students. And the question is why, if this is true in the context of classrooms, it is not equally true throughout the university.

Universities are institutions created and dedicated to the accomplishment of two missions: the expansion of knowledge and the education of students. With respect to the first mission, I have argued elsewhere, and I will not repeat the arguments here, that the “marketplace of ideas” defended by FIRE has no place. See Robert Post, Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (Yale University Press 2012) and Robert Post, Academic Freedom and Legal Scholarship64 J. Leg. Educ. 540 (2015).

In the context of hiring, promotion, tenuring, grants, and so on, the research of faculty is continuously and properly evaluated for competence. First Amendment doctrines protecting the marketplace of ideas and prohibiting content discrimination are thus inapplicable. Faculty are instead entitled to academic freedom, which, as the 1915 AAUP Declaration of the Principles on Academic Freedom and Tenure declares, concerns “not the absolute freedom of utterance of the individual scholar, but the absolute freedom of thought, of inquiry, of discussion and of teaching, of the academic profession.” Academic freedom of research is about the autonomy of the scholarly community, what Thomas Haskell calls the community of the competent. This is at root why the kind of individual (First Amendment) rights that FIRE is committed to defending are incompatible with academic freedom. To say that in the context of their scholarly research faculty have academic freedom, rather than individual rights, is thus to say that whatever First Amendment rights they may possess are subordinated to the research mission of the university.

Analogously, the individual free speech rights of students are subordinated to the university’s second mission of education. For a general and theoretical argument about why this must be so, see Robert Post, Between Governance and Management: The History and Theory of the Public Forum, 34 U.C.L.A. L. Rev.1713 (1987). Unless I miss my mark, Creeley effectively concedes that this subordination occurs in the context of the classroom. But he quotes Healy v. James for the proposition that individual student free speech rights might be more compatible with university educational objectives in other areas of the campus. I think there is much to be said for that approach. But it requires a sensitive appraisal of whether and how university regulations serve its educational mission in the context of various spaces and dimensions of campus life. Where attributing individual free speech rights to students is inconsistent with that educational mission, they must yield. Otherwise such rights will undermine the university’s very raison d’etre. That is why the Court has explicitly said that “a university’s mission is education” and that the First Amendment does not deny a university’s “authority to impose reasonable regulations compatible with that mission upon the use of its campus and facilities,” which includes “a university’s right to exclude . . . First Amendment activities that . . . substantially interfere with the opportunity of other students to obtain an education.” Widmar v. Vincent, 454 U.S. 263, 268 n.5, 277 (1981) (citing Healy v. James, 408 U.S. 169, 189 (1972)). Read More

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Staging Law

All the law’s a stage, and law books often raise the curtain to reveal its players carefully arranged on a complex set. They depict judges, lawyers, and litigants in the formal spaces where law takes place, especially courtrooms, law offices, and law libraries.

The illustrations in the next stop of our gallery tour—case five: “Staging the Law”—serve many purposes, including public education, political critique, and the promotion of commercial sales.

Yet whatever their purpose, by depicting law’s stage, the books also portray law’s character as a public ritual.

Gates and walls and curtains. Parallel and intersecting architectural lines. Legal players aligned on different horizontal and vertical planes. In their very their realism, the images depict law as a theater of social meaning.

They are the most concrete form of symbolic representation in the tradition of law book illustration.

Images of lawyers at work—which appear almost exclusively in German and Dutch law books—depict more intimate legal proceedings, and so reveal a wealth of details about the relationships between lawyers and their clients, and even about the lawyers’ record keeping systems, as here:

Or here:

We’re mighty fond of them. (Scroll over the images for links to the complete images.)

The scandalous trial of Queen Caroline for adultery—initiated by George IV, who sought a divorce—was one of the most notorious legal and political events of its day, and served as a vehicle for popular criticism of government. The image that starts this post depicts the House of Lords decked out for the proceedings.

Image

The life, trial & defence, of Her Most Gracious Majesty, Caroline, Queen of Great-Britain. London: Dean & Munday, 1820. Acquired with the Charles J. Tanenbaum Fund.

Mark S. Weiner and Mike Widener

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For the next stop on our tour, click here.

 

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FAN 167 (First Amendment News) SPECIAL ISSUE: Robert Post’s Arguments Draw Replies from Erwin Chemerinsky & Will Creeley on Campus Speech Issue

(Credit: Evelyn Hockstein/ for The Washington Post)

This entire FAN post is devoted to recent developments concerning free speech on college campuses. This sampling reveals just how controversial and widespread this debate has become.

Last week I blogged on the campus speech debate as it played out with the Virginia ACLU and its response to the William and Mary controversy (Deleted Passages: VA ACLU abandons key portions of its original statement regarding William & Mary controversy. See also Walter Olson, The ACLU Yields to the Heckler’s Veto, WSJ, Oct. 24, 2017)

As evidenced by the several entries below, the campus speech issue continues to be the First Amendment issue of our times.

Just out: Post-Chemerinsky Exchange

Professors Robert Post and Erwin Chemerinsky exchange views on the topic of campus speech, this in just published Vox posts. Here are a few snippets from that exchange:

POST: “The language and structure of First Amendment rights . . . is a misguided way to conceptualize the complex and subtle processes that make such education possible. First Amendment rights were developed and defined in order to protect the political life of the nation. But life within universities is not a mirror of that life.”

“. . . [M]embers of the university community do not enjoy special freedoms. They have the right to academic freedom, not First Amendment freedom of speech. Academic freedom is defined in terms of the twin missions of the university; it encompasses freedom of research and freedom of teaching. Academic freedom does not entail the equality of ideas. To the contrary, it is defined as the freedom  to engage in professionally competent teaching and research.”

CHEMERINSKY: “Professor Post’s premise is undoubtedly correct: universities must evaluate the content of faculty and student work. But it does not follow that outside of this realm, free speech principles do not apply on campus. It is a logical fallacy to say that because basic free speech principles sometimes do not apply on campus, they must never apply.”

  • “First, it is important to distinguish what the law is from what Professor Post thinks the law should be. . . .”
  • “Second, Professor Post ignores the distinction between the university’s ability to regulate speech in professional settings (such as in grading students’ papers or in evaluating teaching and scholarship) and its ability to regulate speech in other contexts. . . .”

 Related: Erwin Chemerinsky & Howard Gillman, Free Speech on Campus (Yale University Press, 2017)

Robert Post’s Article & Will Creeley’s Response 

Recall, that in an earlier FAN post I refenced a forthcoming article by Professor Post entitled The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Again, here is the abstract of that article:

Robert Post (Yale Daily News)

POST: This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

I invited Will Creeley, Senior Vice President of Legal and Public Advocacy at FIRE, to respond to Professor Post’s article. That reply is set out below. Professor Post has been invited to respond. Should he accept, his response will be published in a future post.

WILL CREELEY, “Free Speech on Campus: A Response to Robert Post”

Will Creeley

In an essay for a forthcoming book edited by Lee Bollinger and Geoffrey Stone, Yale Law School professor and former dean Robert Post turns his attention to free speech on campus. Unsurprisingly, Post delivers his argument with characteristic erudition and acuity. Unfortunately, however, his contribution distorts the contours of the current debate by suggesting that my organization, the Foundation for Individual Rights in Education (FIRE), takes positions we do not in fact hold. Post’s misunderstanding of FIRE’s work requires a response.

Post argues that recent campus speech controversies illustrate “our modern failure to appreciate the fundamental purpose of the First Amendment” — that is, to “protect speech that serve[s] the purposes of self-government.” Because “public universities are not public parks,” and instead serve an educational mission, Post concludes that “it makes little sense to apply core First Amendment principles of freedom of speech to public universities.”

To make his point, Post enlists FIRE as a foil. He writes:

FIRE aggressively proclaims that First Amendment protections of free speech ought to apply within the domain of universities. The assumption is that First Amendment protections attach to speech, and speech occurs within universities. A moment’s reflection, however, reveals the superficiality of this logic.

“Consider, for example, speech within a classroom,” Post continues. “If I am teaching a class on the Constitution, my students cannot ramble on about the World Series.”

But to FIRE’s knowledge, nobody is arguing that they should be able to do so. Certainly, FIRE has never argued as much. Post does not cite any instance of FIRE (or any other organization) advocating that students should have such a right. FIRE has always recognized that professors have a right to control their classrooms. Academic freedom — that “special concern of the First Amendment” — demands it.

FIRE does not intervene in controversies involving in-class student speech. We do not take cases involving grade disputes, accusations of plagiarism, or other academic misconduct. Barring extraordinary circumstances — we have defended students who have been required by faculty to lobby for political positions outside of class, for example — we will not ever be involved in such cases. Post errs by suggesting otherwise, turning FIRE into a convenient strawman.

Post continues in this direction, attempting to show the incompatibility of the First Amendment and campus:

If I am supposed to be teaching constitutional law, I can’t spend my classroom time talking about auto mechanics. Universities also assess the quality of the ideas conveyed by professors. If a mathematics professor continuously gets her equations wrong, her competence will be called into question. Universities also compel professors to show up to class, to teach, and therefore to speak.

But again, to our knowledge, no one — not FIRE or other organizations, and certainly not courts — has suggested these examples are at odds with the First Amendment’s requirements, nor would any reasonable observer do so. In fact, the outcomes Post describes are in line with longstanding jurisprudence regarding the role of the First Amendment on public campuses. For example, like courts and the American Association of University Professors, FIRE believes that a faculty member’s in-class speech must be germane to the course’s subject, broadly construed, to earn the protection of the First Amendment and academic freedom. We acknowledge that if a professor isn’t actually teaching his or her class, he or she may be subject to discipline, though we think that such decisions are best left to his or her faculty peers.

Courts (and FIRE) have been more thoughtful about the First Amendment’s application on campus than Post acknowledges. Justice Powell’s statement in 1972’s Healy v. James is representative of the judicial approach, both then and now:

As the case involves delicate issues concerning the academic community, we approach our task with special caution, recognizing the mutual interest of students, faculty members, and administrators in an environment free from disruptive interference with the educational process. We also are mindful of the equally significant interest in the widest latitude for free expression and debate consonant with the maintenance of order.

And since the advent of forum analysis, courts have recognized the differences between the various areas of a college campus, noting the obvious distinctions between classrooms (a classic example of nonpublic fora), auditoriums or amphitheaters (designatated public fora), and open outdoor spaces and sidewalks (traditional public fora). See, e.g., Bowman v. White, 444 F.3d 967, 976-77 (8th Cir. 2006) (“A modern university contains a variety of fora…. labeling the campus as one single type of forum is an impossible, futile task.”) The judiciary has drawn these commonsense distinctions for years, but Post does not appear to acknowledge this well-established precedent.

Post’s argument is animated by his concern about applying the First Amendment “to ‘speech as such’ rather than to public discourse.” By invoking the First Amendment in controversies that concern only the quotidian “communication [that] inheres in all aspects of life,” Post worries that we are inviting a “predictable over-extension of First Amendment rights [that] will in the long run prove unsustainable.” In other words, when the speech at issue is not “essential for the free formation of public opinion,” the First Amendment need not apply.

Accordingly, because “public universities are not public parks,” Post concludes that “First Amendment doctrine does not help us resolve” campus speech controversies “because such doctrine derives from the requirements of public discourse within a heterogeneous nation.”

But the controversies in which we engage every day — FIRE’s bread and butter, wherein students and faculty engaging in public discourse outside of the classroom are subjected to censorship by the authorities or calls for such by their peers or the public — stem from analogous disputes between diverse members of a heterogenous campus. (This similarity in microcosm may partially explain the lasting public interest in campus speech controversies, and the way in which campus speech controversies sometimes prefigure or channel larger cultural disputes.) Given that we believe a core part of a public college’s educational mission is to facilitate the education of future leaders in democratic living, First Amendment doctrine is not only helpful in resolving these disputes, but essential.

If there is something “deeply wrong” about the First Amendment arguments that have helped protect student and faculty from censorship for decades, then FIRE will be happy to be as wrong as the courts that have crafted and credited them. If arguing for such is just “overblown rhetoric” — then, again, FIRE must simply disagree.

MORE ON CAMPUS FREE SPEECH ⇓ Read More

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Taking Law’s Measure

One aspect of law which makes it so compelling as a profession, as a field of study, and as a subject for book collecting, is that it’s a tool for solving real human problems. The peculiar beauty of law books derives in part from this usefulness.

They were made to be touched, handled, and put to work.

The books in the fourth case of our exhibit help practitioners solve legal problems through the tool of mathematics, and they focus on legal problems involving water and land. Their illustrations provide a clarity and a precision that a thousand words could never attain.

Both of us love these books. One of them, by Battisa Aimo, inspired Mike to develop Yale Law Library’s illustrated book collection in the first place.

Overflowing with formal beauty, their illustrations invite readers to shift their attention from book’s pages and onto a specific problem in the world—and then back again.

We note this toggling between text and image in the following video, referencing the long, fold-out map of the River Po at the bottom of the case:

The image at the start of this post comes from the first book of geometry for lawyers. The problem illustrated concerns the ownership of fruit produced by a tree that grows at the junction of several property lines.

In the illustration, the man perched precariously in the branches of the tree appears to have left his shoes and hat beside its trunk.

Look closely: it’s a delight.

The book takes pains to correct some formulations made in a great work of Barolo of Sassoferrato, or Bartolus, which we’ve also included in this case.

Next up in our gallery tour: “Staging the Law.”

Image

Jean Borrel, Opera geometrica. Lyon: Thomas Bertheau, 1554.

Mark S. Weiner & Mike Widener

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For the next stop on our tour, click here.