Category: History of Law

0

FAN 149 (First Amendment News) On hate speech: Will Howard Dean publicly debate Eugene Volokh?

Suggestion: Howard Dean should debate Eugene Volokh at the Newseum, or at the National Constitutional Center, and/or on air — say, on CNN’s The Lead with Jake Tapper or Fox’s Tucker Carlson Tonight or on MSNBC’s Morning Joe or elsewhere. Here is why I suggest this.  

Howard Dean

The Berkeley controversy began with a back-and-forth over cancelling and then postponing Ann Coulter’s speech at the very campus known for launching its own free-speech movement.

Then Ms. Coulter ratcheted it up a bit more with this tweet: “I’m speaking at Berkeley on April 27th, as I was invited to do and have a contract to do.”

Most recently, a First Amendment lawsuit was filed as this controversy continues to prompt ideological posturing.

Earlier, and on a related from, Steven Greenhouse weighed in with a tweet: “Free Speech Defenders Don’t Forget: Ann Coulter once said: My only regret w/ Timothy McVeigh is he did not go to the New York Times building.”

Now onto the reason why I suggest a Dean-Volokh on-air debate.

Apparently, Greenhouse’s tweet got Howard Dean’s juices flowing, so he took to Twitter:

Not to let such an assertion pass uncontested, Professor Eugene Volokh added this to the mix:

“This leads me to repeat what I’ve said before: There is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn, for instance, Islam — or Muslims, or Jews, or blacks, or whites, or illegal immigrants, or native-born citizens — as one is to condemn capitalism or socialism or Democrats or Republicans. As the Supreme Court noted in Christian Legal Society v. Martinez (2010), the First Amendment’s tradition of ‘protect[ing] the freedom to express ‘the thought that we hate’ ‘ includes the right to express even ‘discriminatory’ viewpoints. (The quote comes from the four liberal justices, plus Justice Anthony Kennedy, but the four more conservative justices would have entirely agreed with this, though also extended it to university-recognized student groups’ freedom to exclude members, and not just their freedom to express their thoughts.)”

Professor Eugene Volokh (credit: UCLA Magazine)

“To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. . . . ”

And then this:

To which Volokh replied: , No, Gov. Dean, Chaplinsky v. New Hampshire does not recognize a ‘hate speech’ exception, The Volokh Conspiracy, Aril 22, 2017. Here are a few excerpts:

“I’m pleased to say that I have read Chaplinsky v. New Hampshire (1942), which is usually cited as recognizing a ‘fighting words’ exception to the First Amendment — personally addressed face-to-face insults that are likely to start an imminent fight are not constitutionally protected. But that has little to do with ‘hate speech’ as most people tend to use the phrase: (1) Such personal insults are constitutionally unprotected entirely without regard to whether they are bigoted. (2) Bigoted expressions of opinion that don’t involve such personally addressed face-to-face insults are constitutionally protected. (3) Indeed, statutes that target only bigoted ‘fighting words’ for special punishments are constitutionally unprotected, even if they are limited to such personally addressed face-to-face insults, see R.A.V. v. City of St. Paul (1992).”

Then on MSNBC, Mr. Dean countered: “Okay, several things to think about. One, the United States has the most far-reaching protections on speech of any country in the world. Two, it’s not absolute. Three, there are three Supreme Court cases you ned to know about. One, the most recent, is a John Roberts opinion that said that the Phelps people . . . had the right to picket horrible offensive [things] with signs [at] military funerals. Two, in 2002, . . . the Supreme Court . . . said that cross-buring was illegal because it could incite violence. And three, [the] Chaplinsky case in 1942 said speech was not permitted if it included fighting words that were likely to incite violence. So, this is not a clear-cut [case] . . . . Ann Coulter has used wrods that you cannot use on television to describe Jews, Blacks, gays, Muslims and Hispanics — I think there is a case to be made that invokes the Chaplinsky decision, which is fighting words, likely to incite violence. And I think Berkeley is with its rights to make the decision that it puts there campus in danger if they have her there.”

“I’ll be the first to admit, it’s a close call, it’s a close call,” he added.

*  * * *  *  *

↑→ For a refutation, see Jim Geraghty, Howard Dean’s First AmendmentNational Review, April 24, 2017

Related: Marc Randazza, Dear Berkeley: Even Ann Coulter deserves free speech, CNN, April 24, 2017

Did anti-Trump protestors violate his First Amendment rights?

(credit: Politico)

This from Politico’s Kenneth Vogel: “President Donald Trump’s lawyers argued in a Thursday court filing that protesters “have no right” to “express dissenting views” at his campaign rallies because such protests infringed on his First Amendment rights.The filing comes in a case brought by three protesters who allege they were roughed up and ejected from a March 2016 Trump campaign rally in Louisville, Kentucky, by Trump supporters who were incited by the then-candidate’s calls from the stage to ‘get ’em out of here!’ Lawyers for Trump’s campaign have argued that his calls to remove the protesters were protected by the First Amendment. But the federal district court judge hearing the case issued a ruling late last month questioning that argument, as well as the claim that Trump didn’t intend for his supporters to use force.”

“Of course, protesters have their own First Amendment right to express dissenting views, but they have no right to do so as part of the campaign rally of the political candidates they oppose,” Trump’s lawyers told Newsweek.

 Defendants’ motion to certify an interlocutory appeal in Nwanguma et al v. Donald Trump, President of the United States (Dist. Ct.,, W.D., KY, 2017).

 R. Kent Westberry is counsel for Donald Trump, both as President and individually.

“The Trump Defendants request that the Court certify the following issues:

  1. Whether the First Amendment protects Mr. Trump’s campaign speech as a matter of law, or whether the speech falls within the narrow category of expression that can be subject to censorship for ‘inciting a riot’
  2. Whether the First Amendment precludes holding a speaker liable for negligently causing others to engage in violence.”

Susan Seager, a noted media lawyer,  commented on the claims made by President Trump’s lawyer:

President Trump makes an argument already rejected by the court.  The court ruled that the anti-Trump protesters did have a right to attend the rally since they obtained tickets and were allowed to enter by organizers.  The court said they were not trespassers. Once inside, the protesters did have a First Amendment right to peacefully protest. Organizers had the right to eject them, but not violently.

 Related: Noah Feldman, Trump Lawyers Get Creative With First Amendment, BloombergView, April 24, 2017

Justice Department targets Assange . . . & other leakers  Read More

0

FAN 148 (First Amendment News) Coming this fall: NYU Law to host conference to commemorate centennial anniversary of Hand’s Masses decision

Judge Learned Hand (credit: NY Rev. of Books)

Las Vegas Metropolitan Police Department’s (“Defendant” or “LVMPD”) violations of Plaintiff’s First Amendment right to freedom of expression, as well as his due process rights in terminating his employment based on an unconstitutionally vague social media policy.

This year marks the centennial anniversary of Judge Learned Hand’s seminal opinion in Masses Publishing Company v. Patten (S.D., NY, 1917).  Among others, New York Universally Law School is hosting a major program to commemorate the occasion. Below is a draft of the agenda and the participants scheduled to participate in the upcoming symposium.

A Decision for the Ages

A Symposium Marking the Centenary of Masses Publishing Co. v. Patten

Date:     Friday, October 20, 2017

Host:     New York University School of Law

I.       Historical and Cultural Background – 9:00-10:30

A.     The Artistic and Cultural Scene in 1917 as reflected in The Masses magazine: Amy Adler (NYU)

B.     The Political Situation and The Espionage Act of 1917: Geoffrey Stone (Chicago)

C.     The State of Free Speech Doctrine in 1917: David Rabban (Texas)

II.     The Masses case: Dramatis Personae and Decision – 10:45-12:15

A.     Learned Hand’s Jurisprudence: Ed Purcell (NYLS)

B.     The Role of Gilbert Roe, the Masses attorney: Eric Easton (Baltimore)

C.     The Decision: Vincent Blasi (Columbia)

D.     The Decision: Richard Posner (Chicago) (via videoconference)

Lunch – 12:30-1:30

III.    Aftermath of the Masses decision – 1:45-3:15

A.     Hand’s influence on Holmes and the Abrams dissent: Thomas Healy (Seton Hall)

B.     Hand’s influence on free speech theory and justifications: Mark Graber (Maryland)

C.     Hand’s subsequent free speech decisions: Paul Bender (ASU) (via videoconference)

IV.   A Debate: The Influence of Masses on Modern First Amendment Doctrine 3:30-5:00

A debate/discussion about the extent to which the Masses test has been incorporated into Brandenburg and other modern cases: Burt Neuborne (NYU); James Weinstein (ASU); Martha Field (Harvard)

Walking tour or Reception – 5:15-6:15

DinnerLocation TBD

President Lee Bollinger

In progress: Book to commemorate centennial anniversary of Schenck opinion 

Columbia’s Lee Bollinger and Chicago’s Geoffrey Stone are reuniting to edit another First Amendment-related book. Following their 2002 work entitled Eternally Vigilant: Free Speech in the Modern Era the forthcoming work is timed to coincide with the hundredth anniversary of Schenck v. United States (1919).

As in the prior volume, Bollinger and Stone will begin and end the book with a dialogue between themselves. The authors scheduled to be in the new volume, which will be published by Oxford University Press, include:

  • Floyd Abrams
  • Emily Bell
  • Mona Bicket
  • Vince Blasi
  • Sarah Cleveland
  • Heather Gerken
  • Tom Ginsburg
  • Jameel Jaffer
  • Larry Lessig
  • Catherine MacKinnon
  • Robert Post
  • Albie Sachs
  • Fred Schauer
  • David Strauss
  • Cass Sunstein
  • Laura Weinrig

Owen Fiss on Harry Kalven Read More

2

An Optimist in Pessimistic Times: Chief Judge Katzmann on Civic Education

Chief Judge Katzmann (Charlie Rose program)

One of the keys to the survival of free institutions is . . .  the way citizens do, or do not, participate in the public sphere. — Robert N. Bellah

*  * * 

Civic education is a force than can provide the ties that bind.”

Those are the words of Second Circuit Chief Judge Robert Katzmann, spoken recently on the Charlie Rose program. At a time when partisan politics and ignorance of our constitutional system of government have nearly become our collective default position, Judge Katzmann is busy rallying the cause of the civic-minded citizen. To that end, two years ago he launched “Justice for All: Courts and the Community.” Its Mission:

The federal judiciary is one of the three branches of the national government. It seeks to provide the fair and effective administration of justice for all persons and interests, regardless of race, color, creed, gender, or status. Federal courts and their state court counterparts provide a means for settling disputes peacefully, and help to foster democratic governance, consistent with the Constitution’s goals of “justice” and “domestic tranquility.” Those who founded our government recognized the critical importance of an independent national judiciary with a limited but essential role.

With the active participation of members of the Bar and community organizations working through several committees, its activities include:

  • hosting field trips to the courthouse for schools and community organizations to observe court proceedings and to meet with judges and court staff;
  • holding moot courts and mock trials for students;
  • developing educational resources for teachers about the law and justice system; developing learning centers;
  • creating library labs for students;
  • coordinating Constitution Day/Citizenship Day programs;
  • supporting essay contests;
  • sponsoring adult education programs in such areas as financial literacy;
  • fostering jury service; and
  • developing a speakers bureau whereby judges and members of the Bar visit the schools and community organizations to discuss the work of the courts.

Following in the footsteps of his mentors Senator Daniel P. Moynihan and Judge Frank M. Coffin, Katzmann is doing what he has long espoused: urging moderation counseled by knowledge coupled with a genuine commitment to improving our democracy. Can he succeed? That is the question.

With steadfast energy, the Chief Judge ventures to schools and elsewhere preaching the the Jeffersonian and Madisonian and Hamiltonian gospels of civic engagement . . . and those of Harriet Tubman and Rosa Parks, too.

Duly sensitive to our “red state/ blue state” differences, Judge Katzmann believes in his mission enough to broker this renewed experiment in democracy. Of course, like any experiment, it may fail. But he moves ahead nonetheless; color him an optimist. Again, his words: “Civic education is a force than can provide the ties that bind.”

For more information, go here.

* * See also * * 

1

Stone’s “Sex and the Constitution” — a monumental work

Professor Geoffrey Stone

If you thought Geoffrey Stone’s Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) was an incredible book, hold on: the University of Chicago law professor has outdone himself with his latest book — Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, March 21, 2017).

I know of what I speak: I’ve read both books (the latest in advance galleys). With a discerning sense of the currents of history combined with a masterful grasp of the undercurrents of law, Stone provides his readers with a wide-lens view of how sex and the law have interacted in the span of time dating back to ancient Athens. At once fascinating and disturbing, this book reveals how law works — both as a suppressor and liberator. Witness, for example, the nightmarish world of Anthony Comstock (1844-1915) in which countless lives were sacrificed on the altar of Victorian values. Contrast that with the emergence of a new day brought about by Lawrence v. Texas (2003), which thanks to the lawyer Paul M. Smith and the jurist Anthony M. Kennedy helped to free us from the shackles of sexual bigotry. It’s all there, and more, is this superbly crafted book.

That “more” includes everything from the rigid righteousness of St. Augustine (who was a lustful sinner before he became a revered saint), to those ever-so-pious Puritans who loved to lash the impure, to the Temperance Movement crowd and their campaign to ferret out lust in books (and in loins, too, by way of “anti-masterbation devices”), to those entrusted with enforcing Comstock morality and who felt it their God-given duty to persecute the likes of Margaret Sanger (the birth-control activist) and Ira Craddock (author of Right Marital Living), to Attorney General Alberto Gonzales who with zealous conviction launched the Obscenity Prosecution Task Force, to the Moral Majority’s Grand Poobah, Jerry Falwell, and his insistence that the government not spend any money to combat AIDS because this “plague” was the “judgment of God,” to all those who so vigorously opposed gay marriage because it threatened the continued viability of traditional marriages. Oh, the price we have paid for those virtues bequeathed to us by St. Augustine!

As one turns the pages of this book, something of the marvelous freedom-affirming spirit of When we Rise leaps from the pages of Sex and the Constitution. Still, this is not a work that takes liberties with facts; rather, it is a needs-to-be told story presented with legal acumen and a sophisticated sense of history. The scholar in Stone presents his case with nuanced precision, while the humanitarian in him presents his narrative with a gripping sensitivity to those subjected to the whip of sexual morality.

Have I overstated the importance of Sex and the Constitution? Have I exaggerated its worth? No, not at all; truth is my defense. If you doubt that, read the book. If you accept that, buy the book. If you disagree with that, challenge the book. But of this there can be no doubt: Sex and the Constitution is destined to be the defining work of its genre for a long, long time to come.

The epigraph quote for the prologue  to Sex and the Constitution is the same one used as the quote for epilogue.  And it is a fine line, one from Justice William Brennan’s opinion in Roth v. United States (1957):

Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages.

And it is also a fitting tribute to the memory of the Justice for whom Geoffrey Stone once clerked.

__________What Others Are Saying ___________

“No one should miss out on Stone’s spectacular tour through more than 2,000 years of sex, religion, culture, and law. A treasure-house of philosophical brilliance and legal and historical insight—not to mention erotic delights!—this masterpiece is the rarest of combinations: a page-turner that is also a magisterial font of erudite wisdom.”

Laurence H. Tribe, Carl M. Loeb University Professor, Harvard University

“A vivid, sweeping, and compellingly readable account of the history of sex, religion, and the law by one of our most prominent legal scholars.  This monumental study illuminates the origins and stakes of some of the most heated contemporary debates in constitutional law.”
George Chauncey, Samuel Knight Professor of History, Yale University

“Few, if any, legal scholars possess the capacious intellect and encyclopedic command of constitutional law and American history to make us see in an entirely new light what is perhaps society’s most commonly discussed subject.  In devoting his unique talents to Sex and the Constitution, Geoffrey Stone has created a volume of lasting significance that quickly will become essential reading for all who want to better understand sweeping cultural transformations that continue to roil society.”
Lee C. Bollinger, President, Columbia University

Sex, which has simultaneously inspired and eluded regulation through the ages, has been the focus of many of our greatest constitutional controversies.  No one is better suited than the always erudite and lucid Geoffrey Stone to provide the panoramic treatment that the subject deserves.  Unless you are the rare person who has no interest in either the Constitution or sex, you will want to read this book.”
David Cole, LegalDirector, American Civil Liberties Union

“This fascinating account of how sexual mores, religion, and law have intersected or—more often—collided throughout American history is really about even more than that. It’s about the role of law in maintaining a civil society in a diverse 21st century America, and a call to the Supreme Court to step up to the challenge.”
Linda Greenhouse, Pulitzer Prize winner & Knight Distinguished Journalist in Residence, Yale Law School

“Magnificent and monumental—a stunning blend of dispassionate analysis and deep moral conviction. Think that the United States was born as a Christian nation? Think again.”
Cass R. Sunstein, Robert Walmsley University Professor, Harvard     University

“A superb examination of the history of how the law has regulated sexual behavior and sexual expression from the ancient world to today. This is a brilliant book that offers a balanced and nuanced treatment of controversial topics such as obscenity, abortion, and same sex marriage.”
Erwin Chemerinsky, Dean and Raymond Pryke Professor, University of California, Irvine School of Law

0

The House of Truth and Justice Holmes

I just finished Brad Snyder’s fascinating new book on “The House of Truth.” The book is about the men who lived or visited this house near Dupont Circle in Washington DC during the 1910s, most notably Justice Oliver Wendell Holmes, Felix Frankfurter, Walter Lippmann, and Gutzon Borglum (the sculptor of Mount Rushmore). There is a lot to chew over, both in terms of how Snyder traces the evolution of progressive thought, the personalities involved, and the events swirling about them.

My strongest impression from the book, though, is that it changes my view on Holmes somewhat.  I’ve always had a negative opinion of him, in part because of Buck v. Bell, but also because of his broad pronouncements about the virtues of majoritarianism. Brilliant guy, great writer, but not a person whose legal values were worth emulating. True, he wrote some excellent dissents in First Amendment cases, but I thought of that as the exception rather than the rule.

Why do I feel differently?  Snyder points out that Holmes did more than any other Justice of the time on behalf of African-American rights.  (Perhaps a more precise way of putting this is that the post-1919 more-liberal Holmes did.) Moore v. Dempsey, a 1923 case written by Holmes, was the first Supreme Court decision that ordered a lower federal court to reexamine (though habeas) a state trial that convicted several African-American defendants.  The Court held that there were serious questions raised about whether the petitioners got a trial at all.  Holmes also commented, in an order rejecting the plea of Sacco and Vanzetti for Supreme Court review, that what they got (as flawed as it was) was far more than what many African-Americans were getting.

I want to give this more more thought, but then again that’s what quality books do.

7

FAN 126 (First Amendment News) Geoffrey Stone: “Free Speech on Campus: A Challenge of Our Times”

This issue of First Amendment News reproduces the text of a speech (The Aims of Education Address) Professor Geoffrey Stone delivered at the University of Chicago on September 22nd. The Aims Address is given each year by a member of the University of Chicago faculty to welcome the entering college class. It is delivered in the University’s Rockefeller Chapel. (A video of Professor Stone’s address can be found here.

Given the controversy over campus speech codes and the University of Chicago’s open letter to its students, I thought the following remarks would help inform reasoned discussion of the issue of free speech on college campuses. I have added subheadings, hyperlinks, bullets, and photographs to Professor Stone’s text.     

Professor Stone is is the Edward H. Levi Distinguished Service Professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (W.W. Norton, 2005) and Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (Liveright, W.W. Norton, Mar 21, 2017). 

 ________________________

Welcome to what you will come to know as The University and to the beginning of what I hope and trust will be one of the great adventures of your life. Whenever I think of students arriving here for the first time, I can’t help but recall an incident involving Justice Oliver Wendell Holmes.

Professor Stone delivering the Aims Address

Professor Stone delivering the Aims Address

At the time of this incident, Holmes was a very old man, nearing 90 years of age, in the autumn of his very long and very distinguished career as a Justice on the Suprme Court of the United States. On this particular occasion, Holmes was on a train headed north from Washington. He was deeply engrossed in reading a legal brief when the conductor knocked on the door to his compartment. Recognizing Holmes, the conductor respectfully asked for his ticket. Holmes looked in his coat pocket — no ticket. He looked in his vest pocket — no ticket. He reached into his trouser pocket — no ticket. Growing ever more frantic, Holmes began rummaging desperately through his briefcase — still no ticket.

At this point, the conductor, trying to calm Holmes, said “Never mind, Mr. Justice. It’s really not a problem. When you find the ticket, just mail it in to the company.” To which Holmes exploded: “You dolt! I don’t give a damn about your ticket, I just want to know where the hell I’m supposed to be going!”

In your first days on this campus, you will likely feel a bit like Justice Holmes — you will want to know where the hell you’re supposed to be going. My task this evening is to offer at least some sense of direction.

[A True Story about Rebels, circa 1918]

I should like to begin by telling you a bit about my world. It is the world of the law. More specifically, it is the world of constitutional law. Law is about stories. It is about real people involved in real disputes with real consequences. So, I shall tell you a story.

This story begins during World War I. As you may or may not know, World War I was not a particularly popular war with the American people, whose sympathies were divided. Many Americans vigorously opposed the Wilson administration’s decision to intervene in the conflict that was then raging in Europe, arguing that our intervention was both unwise and immoral.

Not surprisingly, such opposition did not sit well with the government. In 1917 Attorney General Thomas Gregory, attacking the loyalty of war opponents, declared: “May God have mercy on them, for they can expect none from . . . an avenging government.”

Gregory wasn’t kidding about the “avenging” government. In 1918, Congress enacted the Sedition Act, which made it a crime for any person to utter “any disloyal, . . . scurrilous, or abusive language intended to cause contempt . . . for the . . . government of the United States, the Constitution, or the flag.” True to the Attorney General’s threat, federal authorities launched more than 2,000 prosecutions against individuals who wrote or spoke against the war or the draft.

The defendants in Abrams v. US

The defendants in Abrams v. United States

One such prosecution involved five young, Russian-Jewish emigrants who were roughly your age at the time. In the summer of 1918, the United States sent a contingent of marines to Vladivostok in Russia. Concerned that this was the first step of an American effort to crush the Russian Revolution, these five self-proclaimed socialists threw several thousand copies of each of two leaflets — one in English, the other in Yiddish — from several rooftops on the lower east side of New York City.

The leaflets, which were boldly signed “The Rebels,” were addressed to other Russian emigrants. After stating that the Rebels hated “German militarism,” they warned those who worked in ammunition factories that they were “producing bullets, bayonets and cannon to murder not only the Germans, but also your dearest, your best, who are in Russia and are fighting for their freedom.”

The “Rebels” were immediately arrested by the military police. After a controversial trial, they were convicted of violating the Sedition Act of 1918. The trial judge, disgusted by their behavior and their beliefs, sentenced the Rebels to terms ranging up to twenty years in prison.

The Rebels appealed their convictions to the Supreme Court of the United States, claiming that their convictions violated the First Amendment, which guarantees that “Congress shall make no law . . . abridging the freedom of speech.” In Abrams v. United States, the Supreme Court, in a seven-to-two decision, rejected this claim and upheld the convictions. For the majority of the Court, this was an easy case. Because the natural tendency of the defendants’ speech was to generate opposition to the war, it was not within “the freedom of speech” protected by the Constitution.

Justice Holmes

Justice Holmes

Justice Oliver Wendell Holmes, the same Justice Holmes who some years later was to lose his railway ticket, dissented. Holmes’s dissenting opinion in Abrams is worth reading, for it remains one of the most eloquent statements ever written by a Justice of the Supreme Court about the freedom of expression.

Holmes wrote: “Persecution for the expression of opinion seems to me perfectly logical. If you have no doubt of your premises . . . and want a certain result with all your heart you naturally [want to] sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Holmes therefore concluded that “we should be eternally vigilant against attempts to check the expression” even of “opinions that we loathe and believe to be fraught with death, unless they so imminently threaten” compelling government interests that an immediate check is necessary to save the nation.

Professor Harry Kalven (1914-1974)

Professor Harry Kalven (1914-1974)

I first read this passage, written almost a century ago, when I was a law student at this University, almost half-a-century ago. It has engaged my energy and curiosity ever since. Indeed, I think it’s fair to say that it was my puzzling over this passage under the probing tutelage of my law school professor Harry Kalven that, for better or worse, put me on the path to my career and, indeed, to where I stand before you this evening.

[The Aims of Education]

But now I must change direction, for this is not to be a discourse on the First Amendment. It is, rather, to be a talk about the aims of education. Happily, these are not unrelated subjects. To the contrary, the longer I have puzzled over the meaning of free expression, and the longer I have thought about education, the more the two seem to me to converge. Indeed, neither really is worth all that much without the other. And, with that in mind, I would like to turn to what I see as the intersection of free expression and education, and to the subject of academic freedom, for it is at this intersection that we will find the most fundamental values of the world you are about to enter.

I hope to accomplish three things in this part of my talk:

  • First, I will trace briefly for you the history of academic freedom, for it is only by understanding where we have been that we can appreciate — in both senses of the word — where we are today.
  • Second, I will talk a bit about this University and about the special role it has played in the struggle to establish and to preserve academic freedom.
  • And third, I will offer some thoughts about what all this means for you and about the responsibilities that we today bear in common.

It is important to understand that, like the freedom of speech, academic freedom is not a law of nature. It does not exist of its own force. It is always vulnerable, and should never be taken for granted. Indeed, until well into the 19th century, real freedom of thought was neither practiced nor professed in American universities.

To the contrary, any real freedom of inquiry or expression in American colleges in this era was smothered by the dominance of religion and by the prevailing theory of “doctrinal moralism,” which assumed that the worth of an idea must be judged by what the institution’s leaders declared its moral value to be. Thus, through the first half of the nineteenth century American colleges squelched any notion of free and open discussion or intellectual curiosity. Any student or faculty member who dared argue, for example, that women were equal to men, that blacks were equal to whites, or that homosexuality was not immoral would surely be expelled or fired without hesitation.

Similarly, through the first half of the nineteenth century, as the nation moved towards Civil War, any professor or student in the North who openly defended slavery, or any professor or student in the South who openly challenged slavery, could readily be dismissed, disciplined, or expelled. When a professor at the University of North Carolina expressed sympathy for the 1856 Republican presidential candidate, the students burned him in effigy and he was dismissed by the trustees. When a professor at Franklin College in Pennsylvania admitted he was not an abolitionist, he was promptly fired.

Several decades later, a furious battle arose over Charles Darwin’s theory of evolution, with traditionalists charging not only that Darwin was wrong, but also that his beliefs were dangerous, immoral, and ungodly. As a consequence of the furious battle in the academy over evolution, new academic goals came to be embraced.

Dean William Rainey Harper (1856 – 1906)

President William Rainey Harper (1856 – 1906)

For the first time, to criticize, as well as to preserve, traditional moral values and understandings became an accepted function of higher education, and by 1892 William Rainey Harper, the first president of the University of Chicago, could boldly assert: “When for any reason the administration of a university attempts to dislodge a professor or punish a student because of his political or religious sentiments “at that moment the institution has ceased to be a university.”

But despite such noble sentiments, the battle for academic freedom has been a continuing and fiercely contentious one. In the closing years of the 19th century, for example, businessmen who had accumulated vast industrial wealth began to support universities on an unprecedented scale. But that support was not without strings, and during this era professors who offended wealthy donors by criticizing their business practices were dismissed from such leading universities as Cornell and Stanford.

Then, during the World War I, patriotic zealots persecuted and, as we have seen, even prosecuted those who questioned the wisdom or morality of the war. In the face of such outrage, universities collapsed almost completely in their defense of academic freedom. Students and professors were systematically expelled and fired at colleges and universities across the nation merely for encouraging a spirit of indifference toward the war.

Similar issues arose again, with a vengeance, during the Cold War in the age of Joseph McCarthy. In the late 1940s and 1950s, most universities excluded those even suspected of Communist sympathies from university life. Yale President Charles Seymour, for example, went so far as to boast that “there will be no witch hunts at Yale, because there will be no witches. We will neither admit nor hire anyone with Communist sympathies.”

As this history demonstrates, the freedom to question, the freedom to challenge, the freedom to inquire is not to be taken for granted. Academic freedom is, in fact, a hard-bought acquisition in an endless struggle to preserve the right of each individual, student and faculty alike, to seek wisdom, knowledge, and truth, free of the censor’s sword.

[The Univ. of Chicago & Academic Freedom] Read More

0

UCLA Law Review Vol. 63, Issue 6

Volume 63, Issue 6 (August 2016)
Articles

President Nixon’s Indian Law Legacy: A Counterstory Carole Goldberg 1506
Principles of International Law That Support Claims of Indian Tribes to Water Resources Reid Peyton Chambers & William F. Stephens 1530
Crime and Governance in Indian Country Angela R. Riley 1564
Recentering Tribal Criminal Jurisdiction Addie C. Rolnick 1638
The Politics of Inclusion: Indigenous Peoples and U.S. Citizenship Rebecca Tsosie 1692

 

Comments

Tribal Sovereignty, Tribal Court Legitimacy, and Public Defense Lindsay Cutler 1752
The Double-Edged Sword of Sovereignty by the Barrel: How Native Nations Can Wield Environmental Justice in the Fight Against the Harms of Fracking Geneva E.B. Thompson 1818
7

Representing the Bill of Rights During the Cold War

Bill_of_Rights_1966_U.S._stamp.1Building on my prior post, I want to highlight this image. It is a stamp that was issued in 1966-67 to mark the 175th anniversary of the ratification of the Bill of Rights. The design was by Herb Block, the longtime political cartoonist for The Washington Post, and was called “Freedom Checking Tyranny.” The mailed fist on the opposite side of the open hand is meant to evoke totalitarianism, which at the time was widely understood as communism.

I also find it amusing that the quote on the stamp is not in the Bill of Rights (and, as far as I know, does not come from any famous speech or Supreme Court opinion).

0

Tribute to Lenny Bruce on the Occasion of the 50th Anniversary of His Death

This series is dedicated to the memory of John Sisko (1958-2016) —  artist, writer, teacher, gallerist, friend, and free-spirit. Sadly, his artistic tribute to Tom Paine never came to pass. Still, his last words revealed the measure of the man, his revolutionary grain: “I have lived my life creatively and uniquely and on my own terms.” Yes you did, John. 

____________________

IMG_4829

(credit: NYT)

To commemorate the 50th Anniversary of the death of America’s most uninhibited comedian, I have prepared five posts for the occasion. My interest in Bruce traces back to my book with David Skover, The Trials of Lenny Bruce (2002 & 2012 — 10th anniversary issue / NPR interview), followed by our successful petition to Governor George Patakai to posthumously pardon the comedian.  

Recent & Related 

bbc-blocks-dark

 “Lenny Bruce – In His Own, Unheard, Words,” BBC, July 30, 2016 (“Fifty years since Lenny Bruce died, Mark Steel explores his legacy in the 21st century, drawing on personal tape recordings from a newly established Lenny Bruce archive at Brandeis University, as well as classic clips from some of his ground-breaking comedy and social commentary routines. With contributions from Lenny’s daughter, Kitty Bruce, and from those who knew and wrote about him, including author Laurence Schiller.”)

Unknown

Philip Eil, “50 Years After His Death, Lenny Bruce’s Spirit Lives,” The Forward, August 1, 2016

Unknown

Kelly Carlin, Rain Pryor, and Kitty Bruce Speak Out About Their Fathers and the Fight for Free Speech in Comedy” (FIRE: Video/Podcast) (really a remarkable video)

Kelly Carlin, Rain Pryor, & Kitty Bruce

        Kelly Carlin, Rain Pryor, & Kitty Bruce

Can We Take a Joke? (FIRE documentary featuring Lenny Bruce)

Paul Krassner, Remembering Lenny Bruce, 50 years after his death, Los Angeles Times, July 28, 2016

 Alex Wohl, Standup Philosopher, Brandeis Magazine, Summer (2016)

(Credit: Vice Squad Mag., April, 1963)

(Credit: Vice Squad Mag., April, 1963)

0

Lenny Bruce – 50 Years Later: Still Funny & “Unsafe”

Warning: The man of whom you are about to read once offended many, and his words continue to do so today.  

Lenny Bruce died for our sins.

FileLenny-bruce-on-stage.jpgOkay, it’s just a joke.

Still, the uninhibited comedian’s legacy did have its redemptive side. After he died, fifty years ago today, no comedian was ever again prosecuted for word crimes uttered in a comedy club. By that cultural measure, Lenny Bruce became the patron saint of standup comedians who freely mock those who trade in hypocrisy.

Before there was Larry David, Penn Jillette, Margaret Cho, Lisa Lampanelli, Chris Rock, or George Carlin, there was Lenny Bruce. He was the quintessential take-no-prisoners comedian. His comedic fare was robust; his style avant-garde; his method crude-blue; and his message upset some and delighted others. Did he shock? – yes. Did he offend? – yes. And was he funny? – yes, outrageously so, at least at his best moments. It’s all in a new documentary titled Can We Take a Joke?

Taboo: That was his off-limits destination. En route he tore into hypocrisy with buzz-saw vigor. No matter the subject – race, religion, politics, or sex – Bruce gave no dime to the Sunday-pious crowd. But when one deals in the forbidden, when one mocks the righteous, and when one does so with razor-cutting humor, there are consequences.

Such as?

Lenny Bruce was prosecuted for obscenity in San Francisco, Los Angeles, Chicago, and New York for his comedy club bits. At great professional and financial cost, he was nonetheless exonerated in all of the cases except the one in New York. By the time the New York club owner (Bruce’s co-defendant) successfully appealed his conviction, Lenny was dead (broke, and with a needle spiked in his arm). He died a convicted comedian – the last one in our history.

(ht: Chuck Harter]

(ht: Chuck Harter]

December 23, 2003. On that day New York Governor George Pataki posthumously pardoned Lenny Bruce. “Freedom of speech,” he declared, “is one of the greatest American liberties, and I hope this pardon serves as a reminder of the precious freedoms we are fighting to preserve as we continue to wage the war on terror.”

The people who must never have power are the humorless. — Christopher Hitchins

Have we remembered that “reminder”? Yes, and no.

On the one hand, we now enjoy an almost unprecedented degree of free-speech freedom. It is our American badge of liberty — that willingness to tolerate that with which we disagree. On the other hand, anything deemed offensive is today banned on many college campuses. The trend is to create “safe zones” where students are protected from ideas or words that might upset them.

At Clemson University, unwelcome “verbal . . . conduct of a sexual nature” constitutes “sexual harassment.” This definition includes a vast amount of protected speech such as a joke or comment that any student subjectively finds to be offensive.

At Clark University, its Code of Student Conduct prohibits “telling jokes based on a stereotype.” Of course, that is something Lenny Bruce often did in order to combat the kind of prejudice lurking behind offensive stereotyping.

Grinnell College bans “bias-motivated incidents,” which include “an expression of hostility against a person, group, or property thereof because of such person’s (or group’s) . . . religion . . .” By that measure, Bruce’s irreverent “Religions Incorporated” and “Christ and Moses” routines could be banned at Grinnell.

Florida State University’s “A Summons to Responsible Freedom” defines “Sexual Misconduct” to include “unwanted [or] unwelcome . . . sexual or gender-based . . . comments.” By that punitive gauge there is much in Bruce’s How to Talk Dirty and Influence People (1992, reissued 2016) that would catch the censorial eye.

And then there is the capper: Northeastern University’s acceptable use policy, which prohibits the electronic transmission of any material “which in the sole judgment of the University is offensive.” Lenny Bruce’s prosecutors used much the same subjective yardstick to indict him. If “Saint Lenny” were alive, he would have a devil of a time ripping into campus such speech codes, the ones that cabin the mind in solitary confinement.

When Bruce was posthumously pardoned, the comedian Tom Smothers said: “So many of us today owe so much to Lenny Bruce.” Indeed. Regrettably, it is a debt still owed on far too many campuses across this land. No joke!