Counterman implications

Arguing with Supreme Court opinions, as one does — in this case Counterman v. Colorado. Now, let me be quick to say that the comment I am making above is really irrelevant to the case, because almost nothing in the opinion or the dissent is about what Counterman did or didn’t do — it’s almost exclusively an in-house debate about what criteria should be used to determine whether given speech-acts are or are nor protected by the First Amendment right to freedom of speech. Basically, the judgment of the Court could be summarized thus: “Hey Colorado, you went after Counterman by claiming that he was making ‘true threats’ and further arguing that one should use a reasonable-person standard to decide what makes something a true threat, but you went about it all wrong. The guy may well be guilty of something, but the particular argument you made against him is inconsistent with First Amendment protections, so we’re going to vacate your decision and send it back to you. Please do better in the future.” So now Colorado has to decide whether to try Counterman again using a different set of standards. 

I think this decision will be really consequential in the long term. For now just a handful of thoughts: 

1. Kagan’s opinion is poorly-reasoned and — this is really surprising, because she’s usually the Court’s most elegant stylist — poorly written. It’s a tired opinion: when she acknowledges Barrett’s dissent she claims that one argument “falls flat” without saying why it falls flat, and claims that one case Barrett invokes is a “poor analog” without saying why it’s a poor analog. 
2. I think this may be because the opinion simply tries to do too much. (This is Sotomayor’s complaint in her partial concurrence: You could have just stopped after declaring the “recklessness” standard the proper one to apply here.) Kagan gets deep into the weeds by looking at several different standards that might be applied in different contexts to determine what forms of speech are unprotected by the First Amendment. Barrett’s dissent also gets into those weeds, but invokes different standards than the ones that Kagan prefers. After a while the Counterman case altogether disappears from view. 
3. I don’t think the majority opinion is intended to empower stalkers, harassers, and trolls, but that’s exactly what it will do. This is certainly Barrett’s view: “The Court’s decision thus sweeps much further than it lets on.” And this will lead to more bad behavior, especially online, and future legal cases that … 
4. … the Court’s decision here will not help to decide. The most important conclusion to be drawn from this opinion is that the Supreme Court’s free-speech jurisprudence is a total mess. Kagan clearly wants to use Counterman in order to sort through the complexity of previous cases and bring order to the jurisprudential record. But there is no order in the jurisprudential record, and in the midst of the confusion a great many bad actors are going to think themselves free to be as nasty as they want to be.  
5. The primary losers here will therefore be women — women like Coles Whalen, whose experience of relentless harassment by Billy Counterman was the origin of this case. And for what it’s worth, I agree with Barrett that this is an unnecessary loss:

The bottom line is this: Counterman communicated true threats, which, everyone agrees, lie outside the bounds of the First Amendment’s protection.” Ante, at 4. He knew what the words meant. Those threats caused the victim to fear for her life, and they “upended her daily existence.” Ante, at 2. Nonetheless, the Court concludes that Counterman can prevail on a First Amendment defense. Nothing in the Constitution compels that result. I respectfully dissent.

Stanford Law School Dean Jenny S. Martinez: 

I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.

Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Knowing all of this, I believe we cannot function as a law school from the premise that appears to have animated the disruption of Judge Duncan’s remarks — that speakers, texts, or ideas believed by some to be harmful inflict a new impermissible harm justifying a heckler’s veto simply because they are present on this campus, raised in legally protected speech, and made an object of inquiry. Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work. Lively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty. Observance of this duty matters most, not least, when we are convinced that others haven’t. 

I think Dean Martinez has navigated this mine field about as well as it could be navigated, and in the process has made some vital salient points about the nature of legal education — and of true education more generally. 

same old song

The Foundation for Individual Rights and Expression:

HB 999 [in Florida] would require faculty to censor their discussion and materials in general education courses, to the detriment of both faculty and their students. The measure would prohibit faculty teaching these courses from including material that “teaches identity politics,” which the bill defines as “Critical Race Theory” — something the bill does not define. Faculty teaching courses on history, philosophy, humanities, literature, sociology, or art would be required to guess what material administrators, political appointees, or lawmakers might label “identity politics” — no matter how pedagogically relevant the material is to the course.

HB 999 would also require that general education courses rewrite “American history,” prohibiting teaching that would suggest that America was anything other than “a new nation based on universal principles stated in the Declaration of Independence.” And faculty would be required to guess what it means — again, in the eyes of administrators and political appointees — to “suppress or distort significant historical events.”

But perhaps the most vague restriction in HB 999 is its prohibition on the inclusion of “unproven, theoretical, or exploratory content” in general education courses. A broad range of academic content — including quite literally all scientific theories — is contested and theoretical. State officials would have unfettered discretion to determine which views are “theoretical” and banned from general education courses. A bill so vague that it allows officials the discretion to declare that professors cannot discuss new theories and ideas in a particular public university class should be rejected, flat out. 

Meanwhile, in Hungary, 

According to draft legislation seen by Reuters on Friday, the government would set up a National Cultural Council, headed by a minister, with the task of “setting priorities and directions to be followed in Hungarian culture.” 

The minister would also have a say in the appointment or sacking of theater directors at institutions that are jointly financed by the state and municipality.

“It is a fundamental requirement for activities belonging under the auspices of this law to actively defend the interests of the nation’s wellbeing,” the bill says. 

Because nothing says “stop woke tyranny” like imposing an alternative tyranny. Let me sing the chorus once more: EVERYTHING NOT FORBIDDEN IS COMPULSORY. 

Academics and artists are typically not well-equipped to resist this kind of bullying, because they have spent much of their lives seeking the approval of others. (It’s one of the hazards of pursuing a career in symbolic manipulation. If you’re a good plumber or carpenter, you don’t have to care whether people approve of your personality.) Faced with challenges to our core values, we’re more likely than not to fold like an origami bird. Thus, as Russell Jacoby reports, the minimal response to the attack on Salman Rushdie: 

An August 19 New York City rally of writers gathered in support of Rushdie reprised a 1989 demonstration against the fatwa in which Susan Sontag, Norman Mailer, Joan Didion, Christopher Hitchens, and others participated, but the later iteration “paled in comparison,” a Le Monde editorial remarked. Across social media, writers expressed concern for Rushdie’s health, but an instinctual solidarity with him and the sense — so strong at the time of the fatwa — that his fate spoke to all of us as members of a liberal society did not materialize. Even among his defenders, free speech took a back seat.

Why? One reason is fear. In 2009, the British writer Hanif Kureishi told Prospect Magazine that “nobody would have the balls today to write The Satanic Verses.” He might have added that no one would have the balls to defend it. Most writers, Kureishi continued, live quietly, and “they don’t want a bomb in the letterbox.” 

Actually, they’re probably more afraid of being dragged on Twitter than receiving the letterbox bomb. And in such a climate of fear-to-offend, this is the key paragraph in Jacoby’s essay: 

Censorship by fear can take two forms: top-down or bottom-up. From the top, a publisher or editor can stop publication over concern about a potential reaction. If the right to free expression is qualified by the condition that you not “upset someone, especially someone who is willing to resort to violence,” Rushdie noted in Joseph Anton, it is no longer a right. However, the text or cartoon still exists, and might appear elsewhere (a small publisher picked up The Jewel of Medina after Random House scrapped it). But bottom-up censorship — self-censorship — is more nefarious, more widespread, and more difficult to track. Writers shelve projects before they see the light of day. The cartoon is undrawn, the novel or the scene unwritten. “The fight against censorship is open and dangerous and thus heroic,” the Yugoslavian novelist Danilo Kiš observed in 1985, “while the battle against self-censorship is anonymous, lonely and unwitnessed.” 

And this is why it is virtually impossible for good art to be made in our place, in our moment. And also why we need to treasure and protect the works of the past that both disturb our comfortable assumptions and open to us new vistas of moral and intellectual possibility. Reading those books used to be compulsory; soon enough it will be forbidden. 

Franciska Coleman: 

In this paper, I undertake a qualitative exploration of how social regulation of speech works in practice on university campuses, and of the extent to which social regulation in practice affirms or undermines the stereotypes and caricatures that characterize the cancel-culture wars. I first summarize the two narratives that an- chor public debates over the social regulation of speech—consequence culture and cancel culture. I then describe the social regulation of speech and its five phases: dissemination, accusation, pillory, sanction and direct action. I explain how these five phases were reflected in the speech events under study and the extent to which their real-world features challenge or support the cancel-culture and consequence-culture narratives. I end by suggesting further research on the implications of this phases framework for efforts to balance universities’ dual commitments to free speech and inclusive community on their campuses. 

This is a very helpful framework for further discussion — in large part because it helps to get us out of the endless and fruitless debates over whether “cancel culture” “really exists.” I hope some confused and frightened university administrators read it.