Hollow Hope

For those interested in the literature on law and politics, I have a long posting today (and a colloquy with Mark Graber) on Rosenberg’s classic book, The Hollow Hope. Check it out, and while you’re there look over Balkin’s blog. It really has no equal in its chosen area.

With lawyers like this, who needs lawyer jokes?

The spectacularly despicable behavior of Cully Stimson, a lawyer in the Defense Department, who has publicly tried to get corporations to muscle law firms not to represent Guantanamo inmates by yanking their business, has been widely deplored in remarkably harsh terms. I’m not aware that he’s facing disbarment yet, but I looked in the DC rules of professional conduct and found what look like pretty ample grounds to yank his shingle, and even a duty for every other lawyer to drop a dime on him. Oddly, it does not seem generally prohibited for lawyers to bring the legal profession into disrepute, but if he’s not nailed for the following, one has to wonder about the whole idea of self-regulated professions, and if Gates doesn’t in any case put him on the street pronto, one has to wonder about the SecDef. Here are the relevant rules:

Continue reading “With lawyers like this, who needs lawyer jokes?”

Insulting speech in and out of schools

The speech restriction issue Mark takes up below does not seem to me to be as tractable as he makes it sound, especially outside schools in the larger society. And I don’t think he pays enough attention to duties compared to rights in this context, especially as regards an operational definition of language that “insults other students”.

Continue reading “Insulting speech in and out of schools”

Insulting speech in schools

Schools should be allowed to prevent students from insulting one another. That’s not a content-neutral rule.

I should know better than to take on my friend Eugene Volokh on points of Constitutional doctrine. But it seems to me that the 9th Circuit result he criticizes &#8212 that a school district can forbid a student to wear in school a T-shirt that says “Homosexuality is shameful” &#8212 is obviously correct as a matter of policy, and could justified in terms that, while admittedly not perfectly content-neutral, do not unduly restrict debate on matters of public importance. (The cases of “Bong Hits 4 Jesus”, the expression of pro-Taliban views, or writing a poem involving violence, which Eugene treats as parallel, seem to me disanalogous in important ways.)

The standard I would favor is “Nothing that insults other students.” The school has a right, and in some cases an obligation, to ensure that students can go about the business of learning undistracted by direct affront, as opposed to the offense represented by the expression of upsetting opinions. (There’s an analogy to the “fighting words” rule, but I wouldn’t insist on the likelihood of actual violence.)

Take the simplest case: A student shows up in school with a T-shirt that says “Abe Bernstein is a doofus,” where “Abe Bernstein” names a fellow-student. Even if there’s no danger that Bernstein will respond with violence, it seems to me obvious that the school authorities can and should tell the aggressor &#8212 for insult is surely aggression &#8212 to take off the T-shirt. And no, that’s not a content-neutral rule, since there would be no reason to require him to remove a T-shirt that says “Abe Bernstein is a hero.” Abe Bernstein ought to be able to go to school without having to choose between accepting insults and retaliating against them, verbally or physically.

And I suppose this instance is uncontroversial, just as it would be uncontroversial that a teacher could and should tell a student who says “Abe Bernstein is a doofus” to Abe Bernstein’s face (even at recess or in the lunch line rather than the classroom) to apologize, or send him to the principal’s office for saying it. Not content-neutral, but perfectly proper. What’s being protected is the orderly functioning of the school.

Now suppose that instead of “Abe Bernstein is a doofus” the T-shirt says “Judaism is a gutter religion.” Bernstein is not less insulted, and perhaps more so, since it is by some standards praiseworthy to laugh off an affront to oneself, while it seems shamefully disloyal to let an affront to one’s religion or family go unanswered. (Consider “Abe Bernstein’s mother gives green stamps.”) And no, of course a T-shirt quoting Rabbi Hillel or otherwise praising Judaism would not fall under the same ban, no matter how many Christians or Muslims or agnostics it annoyed.

To take an example raised by one of Eugene’s commenters: in general, a T-shirt saying “Bush is a Terrorist” should be just as protected as one saying “Bush for Mt. Rushmore.” But if Mr. Bush had a grandchild in that school, the “Bush is a Terrorist” T-shirt, but not the “Bush for Mt. Rushmore” T-shirt, should be banned as a personal affront to the grandchild.

And a T-shirt saying “Republicans Support Torture,” which expresses what I take to be a mostly correct statement about what I take to be a matter of great public importance, would also be banned on school grounds, since torture is known to be shameful and the T-shirt would therefore affront any students foolish and wicked enough to be Republicans. (By contrast, “Torturers are Cowards” would be protected, since presumably no student is himself a torturer.)

Affront is not the same as offense. A liberal Democrat could feel offended by a “Bush for Mt. Rushmore” T-shirt because it implicitly condemns liberal Democrats, or an Iraqi immigrant because it praises the invader of Iraq. Tough. And the same for anti-gay bigots who might be offended by a rainbow button. The question is not whether someone is annoyed, but whether a reasonable third party would think that an affront had been offered. (In principle, that’s an empirical question, since being affronted and no responding tends to lower someone’s social standing.)

And no, I don’t want the courts enforcing these standards; I want them, instead, to defer to school authorities except in egregious cases, which is what the 9th Circuit majority did in this case.

In the actual instance, would the rule as applied be unfair to the anti-gay viewpoint? Yes, in that “Homosexuality is shameful” would be banned, while “Homosexuality is not shameful” (or, more plausibly, “Gay and proud”) would not. But a gay student would, by the same token, be forbidden to wear a “Fundamentalists suck” T-shirt, while a T-shirt with a picture of Jesus and the Gospel verse “I am the Way, the Truth, and the Life” (or, for that matter, a picture of Lou Dobson) would be permitted, even if some gay student decided that praising Christianity, or Dobson, amounted to condemning homosexuality.

So bigots would be silenced from directly expressing their bigotry, while promoters of tolerance could promote their viewpoint explicitly. That’s life in the big city. If you can’t express your ideas without insulting a fellow-student, you have the undisputed Constitutional right to STFU.

“Justice courts” and their injustices

A depressing chronicle of petty tyranny, and a reminder of the futility of substantive rights without procedural protections and the tendency of unchecked discretion, exercised in secret, to invite abuse.

Monday’s New York Times has a hair-raising account of incompetence, bigotry, corruption, and inequity in New York State’s “justice courts”: part-time tribunals staffed by untrained and uneducated part-time judges, called “justices” after the traditional English Justices of the Peace. Wednesday’s Times explains the politics of the system. Another installment is promised.

The series is a reminder that substantive rights are worthless without procedural protections, and that unchecked discretion exercised in secret is a formula for tyranny. (Applications to current controversies are left as an exercise for the reader.)

A Supreme Court decision fifteen years ago granted judges total immunity from lawsuit for actions taken from the bench, even when those actions are grossly illegal and beyond the judges’ powers. (For example, a judge who orders someone jailed without trial cannot be sued.) The state, or the town that appoints the judge, might be liable for damages under the civil rights laws if a judge can be shown to have discriminated against a “protected class” of people. But a litigant who is the victim of the judge’s non-racial animus or incompetence is completely out of luck.

Sauces for Goose and Gander

Just a few days after the United States Supreme Court holds in FAIR v. Rumsfeld that the federal government may condition funding of universities on law schools’ willingness to accept military recruiters on campus, the California Supreme Court holds that the city of Berkeley may refuse to provide subsidies to the Boy Scouts and other groups that discriminate against gays or atheists.

The CA Supremes are no dummies; they wait for the US Supremes to rule on whether government may condition spending on whether entities adhere to other laws, and as soon as it comes down from DC that this doesn’t violate these entities’ free speech rights, then the state supreme court follows. This isn’t exactly a profile in judicial courage, but ever since 1986, when a right-wing recall campaign kicked out three justices for their pro-plaintiff rulings in tort cases, the California Supreme Court has pretty much been afraid of its own shadow.

In typical fashion, an amicus brief for the Scouts was filed by the odious Pacific Legal Foundation, which usually is in the business of trying to destroy environmental regulations on the altar of private property rights. Now, it has decided the most important free speech issue it can find is the right to discriminate.

But PLF’s and many other conservative libertarians’ positions come with a deeper corruption. In writing about Fair v. Rumsfeld, many libertarians took the position, “See? This is what you get when you support a big welfare state. You’ve become dependent upon them. If you don’t want government funding decision affecting you, don’t take money from the government.” Many of them triumphantly pointed to Hillsdale College, a right-wing institution that refuses to take federal money, as an example of conservatism’s flinty, tough, self-reliance.

But what happens when their ox is gored? They get one of their very well-funded foundations to cry that the lack of a subsidy from the city of Berkeley is infringing on their free-speech rights. Libertarians are so committed to small government that they cannot go without a subsidy from perhaps the most left-wing city in the country.

We shouldn’t be surprised at this, of course. Many of the most Republican districts in the country essentially live on federal subsidies; the South was pulled out of decades of backwardness with Washington’s money; former Senator Phil Gramm, who could never resist the temptation to lecture the poor on their lack of self-reliance, never held a private sector job in his life. But we should keep pointing it out.

The whole issue is actually fiendishly complex. Our instinct tells us that the government can condition its spending quite freely: if you don’t like the terms, don’t take the money. But if that’s the case, could the government do it with a tax credit, too? Well, sure: the government often spends money through tax credits. But if that’s the case, could the government choose to tax some entities based upon their policies or political positions? No, you say: that would be discrimination. The power to tax is the power to destroy. But as scholars have long pointed out, one can always decide to “spend” through the tax system and tax through the spending system. (A recent example of this scholarship can be found here.).

There is no simple solution to this problem; I’m doubtful if there is one at all. But at the very least, we might decide to avoid the legal obfuscations and see that this is really a problem of politics. Let’s stop the nonsense about free speech rights: the right wants to discriminate against gays, and the left wants to stop discrimination against gays. Tocqueville was right but missed the point: it’s not so much that every American poltiical issue eventually becomes a legal one, but rather that every major American legal issue is essentially a political one.