Tagged: Academic Conferences

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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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Submission Deadline Extended: Leading From The South: Politics Of Gender, Sex And Sexualities Proposal

DEADLINE EXTENDED: To be consCFPidered for participation, please send an abstract (500-600 words) and your contact info byMarch15, 2016 to: snx.latcrit@gmail.com.

The South-North Exchange on Theory, Culture and Law (SNX) invite you to submit proposals to participate from its 2016 Conference: Leading From The South: Politics Of Gender, Sex And Sexualities to be celebrated in Santo Domingo, República Dominicana from May 19-21, 2016.

We invite papers across disciplinary boundaries and from all constituencies, on how the global South has been leading current shifts in the politics of gender, sex and sexualities. Specifically, we seek to examine and explore past and present South-North relations regarding the legal treatment of subjects in terms of their sex, gender and sexual identities. We seek to establish a fruitful interdisciplinary dialogue that would proffer a holistic perspective on how certain policies have shaped and will shape the social and legal regulation of subjects based on their gender, their bodies and their desires. For that reason we seek papers on: Marriage, Families, Adoption, Labor, Violence, Child Rearing, Children’s Rights, Reproductive Rights, Poverty, Immigration, Discrimination, State Protections, State Criminalizing Practice, Emerging fields of State Regulation, and Health (among others).

The conference’s proceedings will be held in Spanish and English (with simultaneous translation). For more detail see the official Call for Papers attached.

Follow us on Facebook! (www.facebook.com/snxlatcrit)

If you have any questions, feel free to email me at: arosario-lebron@law.howard.edu.

Aníbal

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FAN.2 (First Amendment News)

Thanks to everyone who sent along information for this and future FAN columns. For those who missed the first column, go here. One of the aims of FAN is to help build bridges between scholars and litigators, liberals and conservatives (and libertarians, too!), and between journalists and all others interested in the First Amendment and freedom of expression. To that end, here is more free speech news:

  • Speech — Justice Stevens & The First Amendment: In a February 7, 2014 speech to the ABA Forum on Communications Law (as of yet unpublished), retired Supreme Court Justice John Paul Stevens said some interesting things about the free expression law of the First Amendment. Here are a few samples:

— Re the Bose Corp. v. Consumers Union of United States, Inc. (1984) product disparagement case, though Justice Stevens ultimately wrote the majority opinion in the 6-3 case, when the cert. petition was first considered at Conference Stevens and most of his colleagues voted to deny review. Justice Byron White, however, relisted the case in order to write a dissent from the denial of cert. Ultimately, however, White persuaded his colleagues to hear the case and the rest is, as they say, history.

— Similarly, the Justices originally planned to deny review in Harte-Hanks Communications, Inc. v. Connaughton (1989), a defamation case. Here, too, Justice White drafted a dissent from the denial of cert., which prompted three other Justices (Brennan, Blackmun, and Marshall) to “vote to grant.” When the dialogic dust settled (and there is more to the Stevens’ story), the Court was unanimous and Stevens wrote the opinion. [For more on this case and the Bose one and related stories, see Lee Levine & Steve Wermiel’s The Progeny (2014).)]

— Justice Stevens disapproved of the Court’s judgment in United States v. Alvarez (the 2012 stolen valor case). “I agree,” said Stevens (a WW II Bronze Star veteran), “with the reasoning and conclusion of Justice Alito’s dissent.” Nonetheless, Stevens found  the first sentence of that dissent to be “inaccurate.” According to Stevens, and contra Alito, “the Court did not hold that ‘every American has a constitutional right to claim to have received that singular award.’” All the Court did was strike down as overbroad a particular federal statute; it thus did not condone all such false and deceptive speech.

— During the ABA Q & A period, Justice Stevens was asked if he thought it was necessary to have a constitutional amendment to overrule the 2010 Citizens United case. He replied: “Well, either a constitutional amendment or one more vote.”

Though Justice Stevens’ remarks have yet to be posted or published, you can look for them in the days ahead on the ABA Forum website here.  (Hat tip to Lee Levine and Steven Zansberg.)

  • Are Animal Rights Activists Terrorists? Have you ever heard of the Animal Enterprise Protection Act? Section 43(a) of the Act makes it a crime for anyone who “travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both.” The Center for Constitutional Rights maintains that AETA violates the First Amendment by criminalizing protected speech and expressive activities such as protests, boycotts, picketing and whistleblowing (see here). The district court dismissed the case on standing grounds, though that ruling has been appealed to the First Circuit (see here).
  • Free Press-Fair Trial: Seems that a Marin County public defender objects to the Marin Independent Journal taking photos of his client (an accused serial bank robber) at an arraignment in the Superior Court. According to a MIJ news report, “after the courtroom hearing, MIJ photographer Frankie Frost snapped photos of [the defendant] on public property outside the Hall of Justice as sheriff’s deputies escorted him in a wheelchair back to the jail. Those photos, which we shared with the Associated Press, have been published in the MIJ’s print editions and website.” The public defender balked and filed an 11-page memorandum seeking to enjoin the paper from publishing the photos again. When MIJ objected, Judge James Chou denied its request without prejudice (see here).
  • Upcoming Event: On Friday, February 21, 2014 (12:00-1:00 pm), the Heritage Foundation will host a program titled “Taxing the First Amendment: Using the IRS to Censor Speech?” The participants include Cleta Mitchell (partner, Foley & Lardner), Bradley A. Smith (chairman, Center for Competitive Politics), Eliana Johnson (reporter, National Review), and Kimberley Strassel (editorial board, Wall Street Journal).
  • Next FAN: Wednesday, February 19.
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Questioning the Value of Omnibus Academic Conferences

As part of my current job, I try to track and distribute information about conferences and workshops that will interest my colleagues and provide good opportunities for them to obtain critical feedback on their scholarly work, as well as make connections with other scholars in their fields. Perhaps because I pay more attention to all types of conferences now (or perhaps because there truly are more of them), I sense a proliferation of smaller legal scholarship workshops focusing on particular subject matters or disciplines, bringing together scholars from schools in a specific region, or fostering development of junior faculty (of course, there are also combinations of these). Much of the anecdotal feedback I get from my colleagues suggests that these smaller workshops are extraordinarily helpful to participants because of the type and depth of feedback they get on their papers. The size of these gatherings also allows for richer opportunities to engage in informal discussions with colleagues and learn about each other’s work.

All of this brings me to the larger question I want to pose. What is the purpose of the annual January AALS meeting? Don’t get me wrong. I love New Orleans and San Francisco and catching up with friends and colleagues from other schools as much as anyone. But at this point, the conference itself seems like a bit of a dinosaur. If the principal justification for the meeting is intellectual enrichment, it’s pretty inefficient. Hundreds of papers are presented, the vast majority of them beyond any single professor’s areas of interest or expertise. And personally, with some important exceptions, I often have been disappointed with the papers presented at the annual meeting compared to the papers I have heard at specialized conferences (including specialized AALS conferences). One could make the case for the general meeting as an opportunity to hear work in fields beyond our specialty areas, but how many of us actually attend panels in fields completely unrelated to our work? I’m sure some administrative work gets done at AALS, but probably nothing that couldn’t be accomplished by a conference call.

Some academic disciplines combine their annual meetings with their hiring conferences. For example, the Modern Language Association has a long tradition of facilitating faculty job interviews at its annual meeting. That approach makes a little more sense because faculties from most schools are gathered in one place to interview candidates, anyway. But the AALS separated out its Faculty Recruitment Conference from the general meeting many years ago, so that rationale has disappeared.

I approach my thinking about the AALS meeting from a resources standpoint as well. At this time of year (as the early bird registration deadline approaches), I receive lots of faculty requests for funding to attend the meeting. Our school spends a disproportionate percentage of its travel budget sending faculty to AALS. In tight fiscal times, it seems useful to contemplate whether that is a good use of funds, or whether that money would be better spent sending faculty to the smaller specialty or regional conferences discussed above. Or, might we decide after considering the heretical idea of scrapping the annual meeting that the AALS’s winter fest is just too big to fail?