Category: General Law


Campus Speech in the “Post-Virginia Tech World”

campus_gate_jpg.jpgThe April 16 massacre at Virginia Tech, along with other recent gun-related violence on campus, will produce some thorny free speech problems for college and university officials. As someone who works on a campus where the threat of gun violence recently manifested itself, I am well aware of the extraordinary safety considerations facing today’s campus administrators. Tragedies like this can also, as I think the example of September 11 shows, sometimes lead to over-reactions and consequent civil liberties violations. Colleges and universities have a decidedly mixed track record when it comes to reacting to new and perceived threats to order, safety, and pedagogy. Many policies enacted after the unrest that swept campuses in the 1960s severely restrained campus expression. Campus speech codes, which flamed out in the courts (but in many cases survive in campus codes of conduct), sought to restrict expression that was racist, or sexist, or otherwise offended sensibilities.

As Justice Frankfurter said in Sweezy v. New Hampshire: “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation.” In the “post-Virginia Tech world,” the First Amendment challenge will be to maintain the sort of openness that ought to characterize places of higher learning, while keeping learning communities as safe as possible. Places of higher learning have responded to Virginia Tech and other incidents of gun violence by altering certain policies and practices. Some of these reactions have been salutary. Colleges and universities have networked campuses such that university communities can more rapidly and effectively communicate with regard to possible threats and safety protocols. While tragic, these incidents have also sparked a debate about important matters like gun control, university duties, campus community, and students’ mental health. The primary threat to expression will likely come from policies aimed at expression that administrators believe falls within two rather amorphous First Amendment categorical prohibitions — speech that incites others to unlawful action or conveys a “true threat.” The First Amendment protects mere advocacy of violence, so long as it is not directed at producing imminent lawless action and is not likely to do so. The true threats category encompasses statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. As the Supreme Court stated in Virginia v. Black, the speaker need not actually intend to carry out the threat. Rather, as the Court explained in Black, a prohibition on true threats “protects individuals from the fear of violence and the disruption that fear engenders, as well as from the possibility that the threatened violence will occur.”

In the immediate aftermath of the Virginia Tech shootings, schools were understandably quite sensitive to what they perceived to be threatening student expression. There were several reported incidents of discipline for expression that, in the pre-Virginia Tech era, might not have raised the same level of concern. The Virginia Tech massacre has occasionally affected pedagogical matters as well. For example, a San Jose State University lecturer opted to stop teaching a creative writing course when he received a disturbing student paper (written prior to the Virginia Tech shootings) in which a character modeled on the lecturer was killed by a vampire. According to the lecturer, in the post-Virginia Tech world this story created “an atmosphere of conflict” in the classroom. Colleges and universities across the country continue to grapple with the delicate balance between safety and students’ freedom of expression. Some schools, like the University of Colorado, have enacted policies requiring mental health screening for students and others who make violent threats. Colorado’s policy states that campus officials “may refer individuals accused of making threats of violence for an assessment of the likelihood that they will act on a threat of violence.” Hamline University has apparently suspended a graduate student for sending two sharply worded (as well as racist and sexist) emails to school administrators in which he supported gun rights — including the right to carry a concealed weapon on campus. Pursuant to university policy, the student must undergo a mental health evaluation. There may be more to the Hamline story than has been publicly reported (privacy laws preclude dissemination of some of the underlying facts). But if the substance of the emails are indeed as reported, the student’s expression does not constitute unprotected incitement or threats. The emails convey (somewhat inartfully) positions on campus security and the right to bear arms.

I intend neither to minimize the danger associated with truly threatening expression, nor to overstate the danger to civil liberties in the “post-Virginia Tech world.” As is the case in the “post-September 11 world,” both dangers are clearly present. The challenge will be to maintain, both inside and outside the classroom, an “atmosphere which is most conducive to speculation, experiment, and creation” even when presented with speech that addresses guns, violence, or both.


Be It Resolved . . .

resolution_jpg.gifIn prior postings (here and here), I have objected to Senate and House resolutions that condemned political expression by and Rush Limbaugh. I did not claim that Congress lacks the authority to issue such resolutions. Rather, my claim was that such pronouncements skew the marketplace in political ideas and may chill expression by some with strongly held political viewpoints — perhaps especially those who have business before Congress.

The issue of congressional resolutions has surfaced once again, although this time in a very different context. On Wednesday, the House Foreign Affairs Committee approved H.Res. 106 — the “Affirmation of the United States Record on the Armenian Genocide Resolution.” The resolution, which includes findings concerning the Ottoman Empire’s execution and displacement of Armenians from 1915-23, “call[s] upon the President to ensure that the foreign policy of the United States reflects appropriate understanding and sensitivity concerning issues related to human rights, ethnic cleansing, and genocide documented in the United States record relating to the Armenian Genocide, and for other purposes.” House Speaker Nancy Pelosi has vowed to bring the measure to the floor for a vote. President Bush, who has made annual statements condeming the atrocities against Armenians, lobbied to block the resolution in committee. He has expressed disappointment that it was voted out of committee, and has vowed to help defeat its passage. The President’s interest in the resolution is obvious: Turkey is a valuable ally in the Iraq War. The country serves as a critical staging ground for the shipment of supplies into Iraq. Turkish officials, particularly legislators, have reacted strongly to the resolution. They have threatened to cease providing logistical support to the United States, have stepped up military operations on the Iraq border, and have recalled their ambassador to Washington.

From the earliest days of the republic, congressional resolutions (joint, concurrent, and simple) have been issued to express the opinion or will of one or both chambers of Congress. Most “symbolically expressive” resolutions are not at all controversial. For example, resolutions have been proposed or enacted which celebrate children as “the hopes and dreams of the people of the United States,” recognize Ramadan and express “the deepest respect to Muslims in the United States and throughout the world,” acknowledge military gallantry, and designate March as “Women’s History Month.” Such “feel good” expression does no harm, and indeed can inform the public of important national policies and priorities.

As the fallout from the Armenian genocide resolution demonstrates, the calculus may be substantially different, and the stakes much higher, when Congress expresses itself on matters of foreign affairs.

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My Ballot and US Magazine

I think it was Doug Berman who wrote recently asking if it was illegal or unethical to sell his USN&WR ballot ranking the top 15 IP programs. Today my ballot arrived, delayed I suppose, by Columbus Day. My qualifications to rank IP programs are right up there with my qualifications to dunk a basketball. But then I thought, “Maybe I am exactly the right person.” Think about it, as I understand it, when ranking various law school programs, USN&WR uses a methodology that is also known as gossip. The last time I checked, even for LLMs the research did not involve an examination of admission rates, student qualifications, or the scholarship of the professors. Yes, it makes the research by US magazine look like it is conducted by Nobel Prize winners.

It also allows for some mischief as hinted by Professor Berman’s facetious offer to sell. Suppose you have a fairly large specialty program and several members of it get ballots on which they rate themselves. And suppose those professors have some friends. The ballots request that you fill out up to 15. The best strategy? Fill in one name – your own. Think law professors are above such things? If so, I have a great Summer Program In Italy I’d like to discuss with you.


What’s In A Name?

baby_names.jpgApparently, much more than most people probably assume. In An Anthropology of Names and Naming (Cambridge Univ. Press 2006), the various contributors examine, through methods of comparative ethnography, the politics, power, symbolism, and expression of naming and being named (or in some cases de-named). As the authors observe, names serve a variety of purposes. States, of course, use them for a variety of regulatory functions (birth certificates, licenses, permits, tax forms). Name-givers choose names that are descriptive of persons, relations, geography, or religion. Contra J.S. Mill, names are hardly “meaningless markers.”

In the United States, names are chosen for various reasons — often for their religious or kinship significance, to express emotions like “Joy” or “Hope,” to make a cultural statement, or simply because they are trendy. Things are quite different in other places and cultures. As reported here, in Zimbabwe names are often chosen to convey specific meaning. Thus, one will find names such as Trymore, Lovemore, Learnmore, Justice, Honour, Trust, Knowledge, Oblivious, Wind, Wedding, Funeral, Rain, and even Hatred. Have-a-Look Dube is apparently a famous footballer in Zimbabwe. In one family, the last of 13 children was named “Never Trust A Woman” — apparently to express doubts about paternity. As recently reported here, states sometimes take more than a bureaucratic interest in the names bestowed upon citizens. A recent bill proposed in the Venezuala National Assembly would have effectively limited parents of newborns to a list of 100 names chosen by the government (the proposal failed to advance). The purpose? According to sponsors, the list was intended to “preserve the equilibrium and integral development of the child” by preventing parents from bestowing names that open the child to ridicule, are difficult to pronounce in Spanish, or generate doubts as to the child’s gender. Examples of purportedly offending names include Haynhect, Olmelibey, Yan Karll, and Udemixon. Meanwhile, among the members of the National Assembly are Jennifer Bravo Quevedo, Earle José Herrera Silva, and Grace Nagarith Lucena Rosendy (the bill would not have been retroactive). Some Venezuelan names — e.g., Kennedy, John Wayne, Pavel, Ilich — reflect historical and cultural ties . In the voter registry, one can find as many as 60 Hitlers; eight Hochiminhs, among them Hochiminh Jesús Delgado Sierra; and six Eisenhowers, including Dwight Eisenhower Rojas Barboza.

The Venezuela bill raises the question whether the state might have some legitimate interest in the process of naming. In the United States, of course, conceptions of fundamental parental and other constitutional rights would preclude such governmental limitations on naming (which does not, in any event, appear to present any social or other problem in need of correction). But surely, many of the names above are likely to cause confusion, taunting, and perhaps other harms to the child. One editorialist likened some of the Zimbabwean names to “a form of child abuse.” That seems a touch overblown. The right of naming belongs ultimately to the family or other kinship structure, and ought not to be dictated by the state in any respect. Still, it is important to exercise special care with regard to an act as significant to personhood and identity as naming. As ethnographers have shown, that act reflects on parent as well as child. We can only hope that namers in all cultures choose well and wisely the “proper” name for their children.


Women Not Attending Law School

businesswoman2.JPG Mike Madison has a post about advice for a new law dean that suggests law schools should emulate business schools and require that a prospective student have a few years of work experience before being admitted. [UPDATE/CLARIFICATION: Prof. Madison's post speaks of "a minimum of two years’ of experience in the world before enrolling in school." I speak of work experience which for me absolutely includes a broad range of activities, not just Wall Street or similar jobs.] Oddly enough it appears that women are not heading straight to law school but not because of any such policy. The National Law Journal reports that the number of women in law school has dropped since 2002. The article indicates that the reason behind this shift is unclear: some point to women being able to earn more than men right out of college in several major metropolitan areas; some note that a few newer schools have greater disparity in enrollment and they may skew the figures; and some note that the press has covered how law firms may not be the most friendly places for women given the lack of female partners and trouble in retaining women in general at firms (“In 2006, just 17.9 percent of partners in law firms were women, according to NALP, a nonprofit organization that tracks legal careers. Meanwhile, 44.3 percent of associates were women.”) Last the article suggests that even with flexible hours, day-care, and paid maternity leaves, the bottom line at most firms creates a world where one is on-call all the time and the hours are not what women want. Maybe, but that seems inaccurate.

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Stay Tuned: Judge Mukasey (Ret.) May Be Nominated For Attorney General

Here’s a quick heads up. Judge Michael B. Mukasey former Chief Judge of the Southern District of New York looks to be President Bush’s nomination to replace Alberto Gonzales as Attorney General. Judge Mukasey has a curious background. He was a federal prosecutor with Rudy Giuliani and has ties to his campaign, served 19 years on the federal bench, and according to some interviewed by the Washington Post, is not well-known or likely to be favored among conservatives. Perhaps his rejection of the claim that Jose Padilla could be held indefinitely as an enemy combatant, which resulted in the case being transferred to South Carolina, upset some folks. Still as the Post notes, William Kristol of the Weekly Standard has written an editorial defending the choice. Kristol suggests that even though Judge Mukasey denied the government’s motion in Padilla’s case he will be acceptable to conservatives. To support this position he quotes Andrew McCarthy’s statement from the National Review Online:

He deftly handled the enemy-combatant detention of Jose Padilla (recently convicted of terrorism crimes), forcefully endorsing the executive branch’s wartime power to protect the United States from an al Qaeda operative dispatched to our homeland to conduct mass-murder attacks, but vindicating the American citizen’s constitutional rights to counsel and to challenge his detention without trial through habeas corpus.

I can’t say I know enough about the man at this point. As Kristol posited, the right may be choosing someone who will not be challenged (Sen. Schumer of New York seems to like the choice) and do little harm from the right’s view in the year and a quarter left in this administration’s term. We will see what happens when the announcement is official which is predicted to be Monday.


Cheaters Here, Cheaters There, Cheaters Everywhere?

aceupthesleeve2.JPGDave’s post about New England Patriot’s head coach, Bill Belichick, being fined for apparently cheating points to a larger question. What does it take to stop cheating? Sure Bellichick has offered the obligatory apology saying how it’s his responsibility, and he made mistakes. He also said “As the commissioner acknowledged, our use of sideline video had no impact on the outcome of last week’s game. We have never used sideline video to obtain a competitive advantage while the game was in progress.” Ah contrition or is that no harm, no foul?

In Formula One racing the fine is much larger. The McLaren racing team must pay $100 million for spying and loses all its team points for the construction title; the drivers are allowed to keep their points and are eligible to win the driver’s title. On a related note, remember James Frey? He had a moving, personal memoir about his struggle with drugs and his wild days called A Million Little Pieces. No. Wait. That was a crock. No matter. Frey now has a new novel coming out. Oh and what about the book that forced the publisher to refund duped readers’ money? It sells around a thousand copies a week.

So where does cheating get punished? The cases above seem to agree with Yahoo columnist Dan Wetzel’s view that “Cheating is everywhere” in sports and that fans really don’t care about cheating. Instead he offers they “want victories and nothing else.” He sums up “Nobody cares. Nothing matters. If you’re not cheating, you’re not trying. Just win, baby.” Wetzel seems a bit overboard, but not too much. More worrisome is the possibility that society really has changed its view of cheating. Sure if one gets caught red-handed, the knee-jerk reaction is talk show emulating outrage and narcissistic assertions regarding how it affected and hurt you. False contrition ensues and allows everyone to feel better. Soon the cheater is redeemed, perhaps even embraced. A true confession and repentance is a powerful phenomenon. The slaps on the wrist and farces of today fall well short of that. Whether the law and the lack of accountability reflect or feed the view that one should win at all costs is a matter for another time, but I do wonder.


Some More Thoughts on the NSL Gag Order Case and the First Amendment

There’s been a lively debate brewing in the comments section of my post on yesterday’s National Security Letters decision in Doe v. Gonzalez, in which a federal judge in the SDNY struck down a provision of the Patriot Act allowing the FBI to impose gag orders on recipients of NSLs. In light of this discussion, I wanted to say a few more words about how First Amendment values are threatened by NSLs.

NSLs raise First Amendment issues on at least two different levels. On the surface is the level adjudicated yesterday – the issue of when the FBI can determine that its requests for information about others can be made secret such that the recipient of the request cannot disclose this fact. As Jack Balkin argues (persuasively, in my view) the district court in Doe correctly struck down what was a licensing scheme that rested on the discretion of the government. This is a straightforward application of Freedman v. Maryland, 380 U.S. 51 (1965), which requires that due to the risks of censorship, government cannot require a license to speak except when it follows rigorous procedural safeguards. Freedman involved the licensing of allegedly obscene movies, whereas this case involves speech about the fact of government use of secret surveillance powers. There is, of course, a substantial (yet also vague) government interest in national security on the other side here, but the fact remains that whereas Freedman involved speech that the government had the power to regulate because it was potentially outside the protection of the First Amendment, the NSL gag order provisions involve core political speech. Our best guide for how that balance should be struck in the prior restraint context, the Pentagon Papers case, 403 U.S. 713 (1971), comes down squarely on the side of free speech. So at the level of First Amendment doctrine on the gag order provision, I think the decision in Doe is correct.

My post (and my research interest in this issue) is not about this surface threat to First Amendment values. It is instead about a deeper and ultimately more important level at which NSLs and other government tools of secret surveillance threaten First Amendment values. Even if we subject the NSL gag orders to meaningful judicial review as the Doe court insisted we do, the right to speak about the surveillance rests if at all on the third party who was served with the NSL. Unless that party is both able to speak up and actually does speak up, the real target of the surveillance is unaware that the government is scrutinizing them. So even after yesterday’s decision, NSLs still allow the government to engage in widespread secret surveillance. Yesterday’s decision did nothing to change the fact that NSLs can be used to scrutinize a person’s intellectual activities, including potentially the people they call, the web sites they visit, and even the terms they enter into a search engine. Because many of us use computers and the Internet to engage in the critical First Amendment activities of reading, thinking, and imagining, the fear that the government could be watching or could easily gain access to computerized records that document our engaging in these activities could easily chill our thoughts and incite them to the boring and the mainstream. In a society which values free thought and free speech as essential tools in the search for truth and self-governance, and which relies on novel, controversial or even deviant ideas as a source of progress, we should be (to paraphrase Holmes) eternally vigilant against government attempts to interfere with these fundamental activities. NSLs (among other modern phenomena) are a threat to the intellectual privacy that nurtures and protects these activities from surveillance and interference, allowing new ideas to develop sheltered from the normalizing gaze of others. Although we often think of the First Amendment and privacy as being in conflict, this is an area of law where First Amendment values and privacy values are not just harmonious, but essentially so.

Yesterday’s decision is a small victory for First Amendment law and a small victory for civil liberties. But the larger First Amendment issues that NSLs raise, which were dismissed by the Sixth Circuit earlier this summer as nonjusticiable, remain unresolved, with our ability to engage in autonomous thought on the Internet resting in the balance.


Deterring Protesters

seal-presidential-color.gifMany have complained that President Bush shields himself from opposing viewpoints and that the Administration, in a more general sense, does not tolerate dissent. Thus far, much of the evidence supporting this claim has either been anecdotal or, some might argue, the product of partisan griping.

A Texas couple recently settled (for $80,000) a lawsuit against the Bush Administration over being tossed from a Fourth of July speech by President Bush. The plaintiffs were ejected for wearing “anti-Bush” t-shirts. As a result of the lawsuit, some evidence came to light that demonstrates the Administration’s aversion to dissent is a matter of official policy. The Office of Presidential Advance produced a “Presidential Advance Manual” (dated October, 2002) that instructs presidential advance staffers in the art of “deterring potential protesters” from attending President Bush’s public appearances. Pre-event measures to “minimize demonstrators” include limiting attendance to those with tickets and screening attendees for hidden protest signs (no “homemade” signs are allowed). If, despite these measures, protesters attend an event the manual instructs staff to ask local police “to designate a protest area where demonstrators can be placed, preferably not in the view of the event site or motorcade route.” If for some reason that is not a workable solution to the problem of potential protesters, the manual suggests the strategic use of “rally squads” to shout them down. Ultimately, if all else fails, the manual instructs that protesters should be thrown out of the event (although staffers are instructed not to fall into the “trap” of physical confrontation, which “most often” is desired by protesters).

Presidential appearances obviously raise substantial safety concerns. There is even, at least on private property, an argument in favor of allowing a campaign or administration to exclude protesters and dissenters (although this obviously distorts the marketplace of ideas and inhibits self-government). The Presidential Advance Manual does not generally address safety concerns. Nor does it distinguish between events on private and public properties. The White House has refused so far to discuss the manual – on the ground that it is at issue in two other lawsuits filed by similarly displaced protesters. The document speaks for itself. It is, simply put, a playbook for deterring public protest.


A Fellow of Infinite Jest? Platinum and Diamond Skull Sells for ₤50 Million


Alas, poor Yorick! I knew him, Horatio: a fellow of infinite jest, of most excellent fancy: he hath borne me on his back a thousand times; and now, how abhorred in my imagination it is! my gorge rims at it.

An artist has taken the skull of a man who died in the 1700s, made a platinum cast, kept the original teeth, and encrusted it with “8,601 near-flawless pave-set diamonds, including a large pink diamond worth more than £4m in the centre of its forehead.” The Financial Times reports that a group of investors that includes the artist has bought the skull so they can put it on tour and then sell it at a later date. The event almost makes Helmsley’s trust for her dog seem like a commonplace and reasonable act.

The claim is that the piece, “For the Love of God” symbolizes “the maximum celebration you could make against death”. Mr. Hirst has also said it is the “the ultimate victory over death, the most you could get from decoration, because our society loves money and wealth”. Infinite jest indeed.

The only pictures of the skull I could find are Getty Images and I think restricted. You can see it here. Besides I think Hamlet’s nod to his dead friend would be less compelling if it were a shiny, enhanced version of his skull. Having just seen an excellent production of the play here in San Diego (and I recommend the Old Globe summer Shakespeare performances should you be in San Diego during their season), I’ll take the older artist’s view that money and wealth seem to have little to do with victory over death. Last I heard, death and taxes are still inevitable. Which is not to say people won’t try to avoid both, but really it seems to be a rather quixotic quest.