The Ruthless Suppression of All Dissent Continues

Bills have been introduced in Congress, as well as several state legislators, which would cut or strip funding to organizations (such as the American Studies Association) engaged in an academic boycott of Israel (the bills often have somewhat broader language than that, but nobody denies academic boycotts of Israel are the target. Though, to be fair, no other country is being targeted for an academic boycott). In any event, "merits" of the boycott aside (and I am of course on the record as viewing the BDS movement as fundamentally anti-Semitic in character -- David Hirsh makes the points far more eloquently), one can still view such bills as a serious threats to academic freedom -- a freedom which includes the freedom to take wrong, or even racist, positions.

But undoubtedly, I'm an exception, right? Those dreaded Jewish organizations who are ever-eager to crush the slightest dissonant voices on Israel -- why, they must be leading the charge for these laws? Or not:

Two of the major Jewish groups are not planning to back a new bill that seeks to pull federal funding from universities that boycott Israel, according to a source familiar with the situation.
“The legislation is almost certainly unconstitutional, it’s a bad law, and it reinforces stereotypes about Jewish influence,” said one pro-Israel Democratic strategist familiar with the groups’ thinking. “It’s so bad that AIPAC and ADL oppose it.”
“There’s no way they’ll say they support it,” the strategist said.
[...]
“We welcome any effort to challenge or fight the boycott, divestment and sanctions in colleges and universities,” said Abe Foxman, director of the ADL. “However well-intentioned, we are not sure that this bill would be the most effective means of recourse.”

AIPAC and Abe Foxman -- those are the typical bogeymen, aren't they? And while they aren't mentioned in the context of the proposed federal legislation, the AJC has come out against a similar bill proposed in New York. Together, AIPAC, the ADL, and the AJC comprise a fairly hefty chunk of the Jewish center, center-left, and center-right.

I predict this development to have precisely zero influence on how people speak about the contribution of Jewish groups to this debate.

Can't Stop the Censorship Train

Two more entries on my recent fascination with free speech and the private sphere. Unfortunately, these are not exactly of the highest quality.

The first is an atypically bad post from Ken White, arguing against calls by Professor Thane Rosenbaum to take a more European (read: stricter) approach towards "hate speech". White takes significant issue with the famous Oliver Wendell Holmes quote that one may not falsely shout "fire" in a crowded theater. White is fair to note that this rhetoric was originally deployed not to defend a speech restriction which was responsive to such a clear and present danger, but rather to uphold considerably more authoritarian restrictions around World War I. Which, fair enough, and fair enough to note Holmes' later repudiation of those cases. But I don't think Holmes (or White, for that matter) ever disavowed the literal statement at issue -- free speech would not protect that false cry of fire in a crowded theater. Which is to say, we do prohibit certain types of speech in certain types of contexts. That doesn't answer the question of scope, but it does throw a crimp on simply relying on a mythical absolutist defense of speech. To say that by quoting that language " you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself" goes way, way too far.

Ultimately, White's conclusion -- that prohibitions on hate speech are more likely to oppress rather than defend minorities -- is the strongest point in favor his position. But he hardly needs to take the detours he does to get there.

Meanwhile, Jenny Jarvie has one of those annoying columns that comes so close to making an important point, only to swerve away into inanity. She writes about a local Atlanta magazine whose editor -- known to be a provocateur -- wrote a really offensive column about a recently deceased pillar of the community who happened to be widely beloved by most of the magazine's core readership. Backlash ensued, including many people boycotting the magazine, which now is at risk of going under.

Jarvie characterizes the question as boycotters wanting to "silence" the magazine. Which, well, no and yes. In the literal sense, nobody is being "silenced", they're just being ignored -- the problem being that a media outlet that's ignored is a media outlet that soon will go out of business. But at some level, the entire point of the market place of ideas is to replace bad ideas with better ones. In that sense we should hope that horrible, offensive comments are "silenced" -- silenced by the fact that they don't have an audience willing to pay for them or a constituency willing to stand by them. If the marketplace of ideas doesn't accomplish that, what's the point? It is frankly bizarre to act as if it is a bad thing when people, through naught but the power of private persuasion, are moved to refrain from airing horrible ideas and encouraged instead to voice better ones.

What Jarvie almost gets at but never quite goes into is the sense that the community wants to "punish" the editor for saying such horrible things, but does not want it to go so far as to destroy his entire magazine. Punishment is deserved, but proportionate punishment, and the worry is that the train has gotten out of control. And this is an interesting problem. The private sphere can regulate bad behavior, but only quite bluntly. Many of the persons boycotting the magazine would probably not, if given the power, decree that it should go bankrupt -- they view the punishment they're ordaining as symbolic criticism (appropriate and proportionate) rather than an economic death sentence (disproportionate). We don't have a way of controlling for the effects of aggregation, and that's a big problem. Ironically, government is far, far better at this -- by maintaining a monopoly on sanction, they can make punishments more precise and ultimately more just. Which isn't to say that the government should step in such cases -- as noted above, there are lots of good reasons why that's a bad idea -- but it might be a ledger mark in its favor.

Lessons in Hyphenation

Jon Chait on treating college athletics like a market:

the vast majority of college athletes have negative market value. A reform based on letting them capture their true market value is going to fail to protect the interests of the vast majority of college athletes. This includes not only every athlete in a sport other than football or men’s basketball (which of course includes all-female athletes), but also many of the players who participate in the most competitive football and basketball programs.

I'm no grammar maven, but I'm pretty sure that hyphen is misplaced.

This is How I Vacation

I'm taking my first vacation from work next week (week of February 10). I'm taking vacation now in part because its my birthday on February 11 (and who wants to celebrate in the office), and in part because I didn't take vacation over the holidays because I had volunteered to work on a bunch of cases with filings on or close to New Year's Day. In the immediate term, this means that I have a ton of work to do this week, since I'm trying to get it in under the wire. But nonetheless, it is very exciting -- I'm looking forward to having the week off.

People have asked me "where [I am] going" for my vacation, to which I have answered "my bed." I don't like traveling much to begin with, and in the context of a vacation I view it as basically sacrificing at least a half day if not more for no discernable benefit. I can sleep in and read books in my apartment just fine. Which leads to the second primary way I've prepared for my vacation: buying five books on deliberative democracy, which I will use to help write a new law review article I'm working on.

I haven't mentioned that part of the vacation plan at the office yet, but if I did I'm sure they'd look at me like I'm crazy. "You're taking a vacation from being a lawyer by doing a bunch of legal (or law-related) reading and writing?" This response makes superficial sense, but I honestly can't parse it. I understand why someone might not be interested in doing academic research and writing for fun, but they of all people should know that such work is a far cry from our day-to-day legal work. This is not a postman going for a walk on his day off.

I'm reminded of a story from when I was a summer associate at the firm. I was at some after-work event (I think it was basketball), and I had brought a book to read during the downtime -- a retrospective honoring the career of Iris Marion Young. A well-meaning associate saw me reading the book and said, concerned, "I hope you're not working tonight!" Now, of course, he was absolutely right that a summer associate should not have to be working through a Friday night after-work firm event -- that's the whole point of being a summer! And I told him no, this book was just for pleasure. But I wanted to say "buddy, if there's a practice group here where I might plausibly be reading books on contemporary feminist theory and democratic practice for work, by all means direct me to them right now because I need to get on that train."

In any event, writing is how I relax. Reading is how I relax. Firm life gives a lot of opportunities to read and write, of course, but not always in the forms and topics one might like. So for my vacation, I'm going to read what I want to read and write what I want to write, and I assure you I will enjoy the break thoroughly.