MEMORANDUM

TO: SINCLAIR COMMUNITY COLLEGE FACULTY, STAFF, AND SECURITY OFFICERS

FROM: PRESIDENT STEVEN L. JOHNSON

RE: I WASH MY HANDS OF THIS, AND MAY GOD HAVE MERCY ON YOUR SOULS

Dear Sinclair Community:

I have done all I can. But I am only one man.

Last year I alerted you to to the clear and present danger created by signs, posters, fliers, and other weaponized expression wielded by fanatics intent on inflicting idea-crimes on our community. I have struggled to protect Sinclair's right to ban signs and posters and other dangerous items that menace the physical and emotional and psycho-sexual security of our students and that threaten to continue the bloody heritage of 9/11, Columbine, Virginia Tech, and that time someone tried to organize a Young Republicans Club.

I come today to say I have failed you. But your blood will not be on my hands. I did what I could.

As you can see from the crowing of hate groups like the Thomas More Society and the Foundation for Individual Rights in Education, Sinclair has been forced into a settlement of a lawsuit brought by angry student dissidents. We have been backed into amending our Code of Conduct and Campus Access Policy, both of which had been bravely drafted by some of the finest and most progressive minds of the Theater and Sociology Departments. We have no choice but to yield. We are up against the retrograde policies imposed upon us by the so-called First Amendment to the United States Constitution, a document drafted by privileged landowners without any diversity committee input or Faculty Senate debate whatsoever.

So: have your bloody victory, "free speech advocates." Be it on your heads, not on mine, when "protestors" start swinging signs like Viking battleaxes and reaping innocent freshpersons like Autumn wheat.

I take comfort in this: though I have failed in defending an official policy limiting expression that might be hurtful to students, I have nurtured in their hearts the seed of an idea — that they have a right not to have their feelings hurt or offended. I see that hopeful shoot taking root and growing across the country. Those children are surely our future.

Last night I attended Greg Lukianoff's talk at the LA Press Club about his book "Unlearning Liberty," which I reviewed here. I got to meet Virginia Postrel, which pleased me, and Adam Steinbaugh, who located me by tweeting words to the effect of "are you that schlubby guy over there staring at his iPad?" I was, in fact.

Greg's a good raconteur in addition to a good writer, and his talk was enjoyable. He emphasized a number of important points made at length in the book: that apathy about free expression amongst students and faculty is terrifying; that modern university censorship is often less about ideology and more often about a self-interested hostility amongst administrators against being criticized or made to look bad; that the rapid growth of university administration (as opposed to faculty) is inevitably leading to this attitude towards speech; and in general that this is no way to run a railroad — or, as Greg puts it, "this is not a formula for a free people."

The book's terrifying and entertaining and great. I highly recommend it. And, as Greg says last night, The FIRE is a two-million-dollar organization standing up to a half-trillion-dollar increasingly administrator-driven higher education industry; it needs and deserves your help. Please consider giving it.

Greg Lukianoff's new book "Unlearning Liberty" is not a feel-good opus. In fact, it ought to leave us feeling very concerned about the attitudes being taught in universities across America. Why? Greg offers a quote attributed to Abraham Lincoln: "the philosophy of the classroom today will be the philosophy of government tomorrow." Greg presents a disturbingly persuasive case that the philosophy of the American classroom today is intolerant of dissent and accepting of all sorts of censorship.

Greg's the President of the Foundation for Individual Rights in Education, and the royalties from Unlearning Liberty: Campus Censorship and the End of American Debate will support FIRE. That's a worthy cause, and Greg has written a very worthy (if disturbing) book.

In Unlearning Liberty, Greg reviews the different occasions and excuses for censorship in modern American universities, marshaling a bewildering array of case studies. Some were familiar to me: the ludicrous reaction to posters at University of Wisconsin-Stout, the legal threats to critics of the administration of Peace College, and the entirely repellent tale of Indiana University punishing a student worker for reading a book about struggles against the Klan in front of coworkers. Many others were new to me — and I follow FIRE fairly closely. Greg has a talent for describing instances of censorship in a way to outrage me anew even if I have heard of them before. (For instance, I defy anyone to read about the University of Delaware's frankly Stalinist reeducation program for frosh without feeling disgust and contempt; Greg offers new details that led me to put the book down and go take a walk for a while.)

But this is not merely a compilation of cases. Greg traces the history of campus censorship after the "political correctness" disputes of the 1990s, and weaves the incidents of censorship together to explain how different vaguely defined ideas (like "harassment" and "disruption" and "civility") are used in an unprincipled manner as trump cards to shut people up. Moreover, Greg rather convincingly illustrates how university censorship impacts the attitudes and tolerances of students, and explains why we should fear that students taught to submit to censorship and due process violations will not be reliable supporters of free expression or due process as voting adults.

Moreover, if you're one of those people who think that FIRE — or other critics of speech codes — have a conservative bias, this book should quell your suspicions. Greg articulates why his own left-of-center beliefs lead him to support free expression and criticize campus censorship. Greg documents censorship of both "liberal" and "conservative" expression, but also demonstrates that censorship is about official power, not about ideology — as cases like the Hayden Barnes matter at Valdosta State University demonstrate. Many of the incidents described in the book are not about administrators censoring speech because they don't agree with its politics; they are about administrators censoring speech because they feel entitled to be free of criticism or dissent.

Though Greg paints a grim picture, the book offers hope. Time and time again he demonstrates how a letter from FIRE and a public outcry can lead universities to reconsider censorious actions. Shame may accomplish what lack of principle could not. We're all the agents of that shame.

I highly recommend "Unlearning Liberty." Even as someone who follows FIRE and free speech issues quite closely, I learned many new things from it and left it with an increased appreciation of freedom of expression and dedication to the cause. Give it a try.

Also, if you're a neighbor, come to hear Greg speak about the book and about his work at FIRE at the Los Angeles Press Club on November 29th. I hope to see some of you there. No crazy stalkers please.

MEMORANDUM

TO: SINCLAIR COMMUNITY COLLEGE FACULTY, STAFF, AND SECURITY OFFICERS

FROM: PRESIDENT STEVEN L. JOHNSON

RE: SCC POLICY AGAINST AGITATION AND USE OF WEAPONS ON CAMPUS

Dear Sinclair Community College team,

No doubt you have heard that Sinclair Community College is under assault by an extremist outside agitation group known as FIRE. The very name of this organization suggests — and inflicts — lawlessness and violence.

Continue Reading »

This morning I had the great pleasure of having breakfast with Greg Lukianoff, President of the FIRE.

Anyone who has read Popehat for a while knows that I'm a huge FIRE fanboy. They fight for students' free expression at both public and private colleges. Moreover, they help educate students about freedom of expression and counteract the regrettably prevailing message that subjective offense or administrative convenience are legally or socially acceptable grounds for censorship.

Breakfast with Greg was as fun as a free-ranging talk with a fellow free-speech advocate and sci-fi aficionado could be. Greg gave me a preview of some of the themes and ideas from his upcoming book Unlearning Liberty: Campus Censorship and the End of American Debate, coming out in October. It's a pre-order and first-day-read for me. Based on my talk with Greg today, I'm looking forward to reading Greg's thoughts about the various avenues of campus censorship (both those based on subjective offense and, as in the recent and ridiculous UW-Stout case, based on pretense of danger), and how campus censorship and defective discourse is repeated and mirrored in the culture.

Greg is also the only First Amendment lawyer I've met who truly appreciates what I mean when I talk about giving the Kobiashi Maru speech to my associates, and doesn't look at me with judging rolley-eyes about it.

Check out Greg's book. Moreover, if any Southern Californians are interested in helping with a fundraiser for FIRE this October, let me know.

Coeducational versus single-sex education is controversial. College administration is controversial, in an extremely tedious and petty way. The economics of running a college is more controversial the more you know about it.

Americans are a contentious people. We like to argue about controversial things.

Many of us see this as a good thing. We see it as part of our cultural heritage, our hard-earned exceptionalism, our competitive advantage.

Unfortunately, too many of us — even those of us in industries ostensibly devoted to open inquiry, like higher education — see it as a bug, not a feature. Too many of us react to criticism through abuse — actual or threatened — of America's deeply flawed legal system.

It is the job of everyone who loves freedom of expression to identify these people, call them out, and condemn and ridicule them.

Let's start today with Peace College of North Carolina and their lawyer, Catharine Biggs Arrowood of the firm Parker Poe.

Continue Reading »

Thirteen years ago, at Greenbrier High School in Evans, Georgia, senior Mike Cameron's smart mouth got him in trouble.

What did he do? Did he talk about drugs and God, like that "Bong Hits For Jesus" kid? Oh, no. Mike did something far worse than promoting demon weed or disrespecting Christ: he risked offending Greenbrier High's corporate sponsor. Mike wore a Pepsi shirt on Coke Day. It earned him a suspension.

"I know it sounds bad — `Child suspended for wearing Pepsi shirt on Coke Day,'" said Gloria Hamilton, principal of Greenbrier High School in Evans, about 130 miles east of Atlanta, the world headquarters of Coca-Cola. `'It really would have been acceptable if it had just been in- house, but we had the regional president here and people flew in from Atlanta to do us the honor of being resource speakers. These students knew we had guests." Friday's Coke in Education Day was part of Greenbrier's effort to win a $500 local contest run by the Coca-Cola Bottling Co. of Augusta and a national contest with a $10,000 prize.

Gloria Hamilton — whom a person less couth than I might term a Coke whore — explained that Mike's behavior disrupted the school's mutually beneficial relationship with Coca-Cola, including its innovative curriculum:

In addition to the school picture, Greenbrier officials invited a Coke marketing executive to address economics students, had chemistry students analyze the sugar content of Coke and used a Coca-Cola cake recipe in home economics.

Later, students in math class learned how to calculate the amount of life insurance would be necessary to provide for their family if they died of diabetes.

Anyway, that was 13 years ago. We were barbarians. Surely modern educators have rejected the creeping attempts by various corporations to use schools as advertising platforms to captive audiences?

Well, maybe not. At Catawba Valley Community College, student Marc Bechtol was suspended and banned from campus for questioning the college's cozy relationship with a financial services company called Higher One. Marc didn't like how CVCC was hard-selling Higher One's cards and services, and didn't like how he became an immediate target of hard-sell marketing pitches for more products and services as soon as he signed up for one of the cards CVCC was pushing. He criticized the relationship on the school's Facebook page, engaging in some mild but obvious satire. It got him kicked out. Fortunately for him, FIRE is on the case, and CVCC president Garrett D. Hinshaw is looking at the sort of bad publicity that tends to make colleges (reluctantly) do the right thing.

Modern education is too much driven by money. It makes administrators do stupid things. Neither Coca-Cola nor financial services companies like Higher One has students best interest at heart. They are in it to make money, as they should be — that's their role. Should they be allowed to market? Sure. Should public schools act as their marketing arm? No. Should protecting their message from criticism be a legitimate goal of the schools? No.

CVCC leadership is about to get a short, sharp, embarrassing lesson. They deserve it.

Edited to add: Higher One's PR team is out and about on this topic.

Last month I wrote about how the University of Wisconsin-Stout ("UWS") tore down Professor James Miller's Firefly poster upon the silly pretext that it represented a threat, threatened him with arrest, then tore down another poster decrying fascism and threatened him over that poster as well. I also wrote about how UWS, once called out, simply doubled down, offering academic double-speak about "a campus climate in which everyone can feel welcome, safe and secure."

Have UWS or its officials gotten smarter? No. No, they have not.

Continue Reading »

The other day I described how University of Wisconsin-Stout police got all censorious and thuggish about a rather inoffensive Firefly poster and an anti-fascism follow-up. Nathan Fillion and others took notice of the story, spreading it widely. The general hope was that once the matter left the hands of UWS Chief of Police Lisa A. Walter and reached the hands of someone with a room-temperature IQ and even a tenuous grasp of freedom of expression, the problem would be corrected.

We should have known better.

As FIRE reports, UWS Chancellor Charles W. Sorensen has reacted to nationwide ridicule by acting in an even more ridiculous fashion.

FIRE has posted Chancellor Sorensen's email here:

There have been recent news reports about an incident in which two posters hung by a UW-Stout professor outside his office were removed by campus police. There are some important points to consider in the wake of these incidents:

UW-Stout administrators believe strongly in the right of all students, faculty and staff to express themselves freely about issues on campus and off. This freedom is fundamental on a public university campus.

However, we also have the responsibility to promote a campus environment that is free from threats of any kind—both direct and implied. It was our belief, after consultation with UW System legal counsel, that the posters in question constituted an implied threat of violence. That is why they were removed.

This was not an act of censorship. This was an act of sensitivity to and care for our shared community, and was intended to maintain a campus climate in which everyone can feel welcome, safe and secure.

Chancellor Sorensen had some "important points to consider." I have some for him, as well:

1. The obligatory "we believe in freedom of expression" paragraph in the standard defend-our-censorship communique is simply embarrassing. That's why the Chicago Manual of Style For Censorious Dipshits ("CMSCD") recommends eschewing it and launching straight into the meat of your uninformed and conclusory stomping on First Amendment law.

2. The problem with demanding a campus free of "implied threats" is illustrated by this case. Campus police first censored a poster of an imaginary space cowboy with a fan-pleasing quote. Next, just to say FUCK YOU IRONY they used threats of official retaliation against a poster condemning threats of official retaliation. No rational person could construe either poster as a threat, actual or implied, to commit violence against any person (although I suppose the second could be construed as a warning — a correct one — that thugs will act thuggishly when questioned.) If a rational person wouldn't take it as an actual threat of violence, then it's not a true threat that can be censored, however much the hysterical, irrational, nanny-stating, coddling, or professionally emo think about it, and however much university chancellors would like to believe otherwise.

3. Similarly, this case illustrates the problem with an approach to freedom of expression premised on "sensitivity" and making people feel "welcome, safe and secure." "Sensitivity to hurt feelings" is not, in fact, a First Amendment value or a justification for censorship. In fact, stopping people from speaking because the speech hurts people's feelings is the essence of censorship. A system in which what we can say is premised upon the likely reactions of the mentally ill and the undernourished pussywillows of the world is a system that encourages suppression of all unpopular, forceful, interesting, or challenging speech. The irrational and the morally and mentally weak are not entitled to have their feelings protected through the force of law, however prevalent they are on campus.

4. If your "UW System Legal Counsel" told you that these posters could be censored based on their content, then stop hiring lawyers out of the back of a bait shop. Or were you using someone who splits their duties between "UW System Legal Counsel" and "Assistant Professor of Western Hegemony And Hurt Feelings Studies"?

5. "No it isn't!" and "nuh-uh" may be entertaining, but they are not actually legal arguments.

6. Fuck you, you censorship-apologizing, rule-of-law-obscuring, equivocating, worthless bureaucrat.

I think we need a new tag for "Twits in Academia" here at the hat. But the task of going back to all the old posts about academic twits and editing them to add the tag is daunting.

Dateline: Wisconsin. At the University of Wisconsin-Stout, theater professor James Miller put up a poster on his door with an image of Nathan Fillion in the character of Captain Malcolm Reynolds with one of Mal's better lines: "You don't know me, son, so let me explain this to you once: If I ever kill you, you'll be awake. You'll be facing me. And you'll be armed."

In a better world, nothing would happen — except perhaps Firefly fans would geek out and people who roll their eyes at geek culture references would roll their eyes.

But this is modern America. In modern America, the Browncoats are people who like to use vigorous figurative language to speak their mind, and they are often outnumbered and outgunned by the Alliance, made up of silly, professionally frightened moral and intellectual weaklings who see expressions of dissent (particularly dissent rendered in vivid figurative terms) as upsetting and potentially all terroristy.

So naturally the campus police at University of Wisconsin-Stout went all Mrs.-Grundy-With-A-Gun-And-A-Badge on Professor Miller. They threatened Prof. Miller with criminal charges for disorderly conduct, taking a page from the cops at Sam Houston state. They also took the poster down. The redoubtable FIRE has the story and has sent the necessary letter asking the University to grow the fuck up and pull its shit together. (That might be kind of a paraphrase by me.)

FIRE describes how the UWS cops and administration, confronted with their idiocy, doubled down in classic fashion:

Later on September 16, Miller placed a new poster on his office door in response to Walter's censorship. The poster read "Warning: Fascism" and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, "Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets."

Astoundingly, Walter escalated the absurdity. On September 20, Walter emailed Miller again, stating that her office had removed the poster because it "depicts violence and mentions violence and death." She added that UWS's "threat assessment team," in consultation with the university general counsel's office, had decided to have the poster removed, and that this poster was reasonably expected to "cause a material and/or substantial disruption of school activities and/or be constituted as a threat." College of Arts, Humanities and Social Sciences Interim Dean Raymond Hayes has scheduled a meeting with Miller about "the concerns raised by the campus threat assessment team" for this Friday.

My days of taking UWS Chief of Police Lisa A. Walter seriously are certainly coming to a middle. Strike that, they've gone past the middle. She's too ignorant of fundamental American rights and too mindlessly thuggish to have a badge or a gun. If Dean Raymond Hayes' meeting with Professor Miller consists of anything other than Hayes buying Miller a beer and saying "Christ, I'm sorry, that cop's a lunatic," then I'll have no respect for Hayes either.

These are the sorts of people who are running the schools educating our kids. They are legion.

Browncoats represent.

Last year I wrote about the regrettable case of Junius Peake, a former economics professor at the University of Northern Colorado, who reacted to a student's rather silly parody of him by calling the cops.

What was appalling about the story was not just that Petty Professor Peake reacted to satire by involving the cops. What was truly appalling was that the cops bit, and Deputy District Attorney Susan Knox authorized a search warrant for the student author's home, on the theory that the overt satire was criminal libel.

This week FIRE has an update — the District Court has, in an order granting summary judgment against prosecutor Susan Knox, found that she is liable for violating the student satirist Thomas Mink's rights. More specifically, the court found that Knox was not entitled to qualified immunity because, in light of the patently satirical nature of Mink's site, no reasonable prosecutor could have believed that the warrant established probable cause that Mink had committed criminal libel. (Knox is only entitled to qualified immunity because approving search warrants is a discretionary function, not a core prosecutorial function.)

This is an important and admirable victory — all the more so because it is so appallingly rare for prosecutors to be held liable for misconduct. Prosecutors have a legal and ethical obligation to be more than a mere rubber-stamp for law enforcement demands — they have an obligation to see that the execution of justice does not violate the clearly established constitutional rights of suspects and defendants. Here Susan Knox willingly let the criminal justice system be the lawless tool of a censorious, thin-skinned, and ultimately ridiculous thug. This puts a black mark by her name — and should.

You can read the opinion through the FIRE link.

When UCLA student Alexandra Wallace posted her moronic anti-Asian rant to YouTube, she felt compelled to preface it with an increasingly standard disclaimer

So we know that I'm not the most politically correct person so don't take this offensively. I don't mean it toward any of my friends I mean it toward random people that I don't even know in the library. So, you guys are not the problem.

All the modern "I can say whatever I want, and you're unreasonable to object" tropes are there — the meretricious invocation of "political correctness" (meant to imply that anyone who objects to what follows is a censorious ideologue), the whiff of "oh, I don't think of YOU as being Asian," and the request that listeners not take offense, invoked as if it changed the meaning and natural tendency of what followed.

Wallace then proceeded to vent, to the best of her bubble-headed ability, her spleen against UCLA students of Asian descent. The shit hit the fan. UCLA — acting correctly — said it would not discipline her for bigoted speech spewed onto the internet, but the tide of infamy has led her to flee.

Allow me a sweeping generalization: nobody ever said anything worthwhile after beginning "I know this isn't politically correct, but . . ." or "I'm not racist, but" or "I have nothing against gays/blacks/Asians/Muslims/whatever, but . . . ." It's not because there's never been a worthwhile statement that could be construed — or misconstrued — as politically incorrect or bigoted. It's because if the speaker had anything worthwhile to say, they wouldn't feel the urge to preface it with an unconvincing disclaimer. They'd say what they had to say, let it rise or fall on its own merits, and accept the consequences, like a grown-up.

Starting out with "you know I'm not politically correct" or "I know this isn't politically correct" or "Not to sound like a racist or anything, but . . ." is a form of special pleading, and a sign of moral and intellectual weakness. Its a request that the listener exempt the following statement from the listener reaction that naturally and probably follows it. It's shorthand — the long form is "Look, I'm not prepared — or perhaps not capable — of presenting a cogent argument about why it's not reasonable for you to take offense at what I'm about to say. And I sure don't have the stones to assert that it doesn't matter whether you are offended or not. So, could you please let me off the hook on what I'm about to say? Please?" It shows an urge to genuflect towards listener sensibilities, but an unwillingness or inability to confront them or defy them. Statements like "I know this isn't politically correct" also have more than a whiff of bootstrapping — of the suggesting that a sentiment has inherent merit because it is offensive to someone. That might wash with simple-minded folks like Bill Maher, but most of us can recognize it as bullshit.

Alexandra Wallace might as well have launched her rant by saying, "Look, I'm a ditz and an asshole. So it would be totally uncool for anyone to react badly when I act like a ditz and an asshole."

There's a flip side to this, though. There's also pressure to genuflect towards sensibilities when we discuss behavior like Wallace's. A discussion of whether or not the First Amendment permits UCLA to discipline Wallace for her speech does not and should not require a ritualistic denunciation of Wallace's behavior. People who find overtly hostile sweeping generalizations about Asians will recognize her rant as offensive whether or not a writer tells them to. People who don't find it offensive still won't even if they encounter a First Amendment analysis suggesting that they should. A demand that any discussion include a sufficient critique of racism infantalizes readers and encourages the worst right-wing stereotypes of academia. Moreover, it erodes civic literacy. A First Amendment analysis ought to be judged on its legal merits, not on its ideological compliance.

You'd think that's obvious. It's not. Blogger Angus Johnston at the blog Student Activism criticized FIRE for failing to condemn Wallace sufficiently in analyzing the First Amendment implications of her speech. In fact, by his title, Johnston suggests that a failure to condemn speech sufficiently is the equivalent of defending the content of the speech, as opposed to the right to utter the speech. Moreover:

Alexandra Wallace’s speech was detestable. If you’re going to defend it on principle, there’s no reason not to admit that.

Well, there is a reason, actually. Whether speech is "detestable" is not pertinent to the question of whether it is protected. If a writer is moved to condemn offensive speech (or ridicule the speaker, which is more our style here), there's nothing wrong with it. But measuring the value of free speech analysis by the extent to which it condemns the speakers and soothes those offended is a distraction — and more than faintly insulting to the offended besides.

In a follow-up, Johnston argues that FIRE downplays and misrepresents the offensive nature of speech it defends:

Again, I respect FIRE’s principles as articulated. I can accept their belief that the work they do requires them to do no more than “present … all the evidence that we have about the expression in question in order to help people make up their minds for themselves.” But that’s not how Shibley approached the Wallace case, and it’s not how FIRE addressed the two previous cases I’ve highlighted. In each of these three cases, representatives of FIRE offered partial and incomplete descriptions of presumptively racist and/or sexist speech, with their omissions serving to create the impression that the speech was less obnoxious than it actually was. And in each of these three cases those same representatives offered editorial defenses of that speech on content-based rather than civil libertarian grounds.

Yet, quite significantly, Johnston utterly fails to explain how FIRE's alleged omissions or distortions were material. That is, Johnson fails to explain how, if FIRE had described the racist speech more vividly, it should have changed FIRE's First Amendment analysis or conclusions. No, what Johnston is talking about is ideological compliance — the notion that there ought not be any discussion of racist speech without a full exposition of the speech and a painstaking denunciation, even if the full details are not relevant to the First Amendment analysis.

That's genuflection. It's no more persuasive that Alexandra Wallace's genuflection. If FIRE engaged in ritual denunciation because it felt that it was expected to do so, then they would be, like Wallace, undermining themselves with a form of cowardice — they would be conveying the message that a discussion of free speech stands not on its legal and civic merits but on its ideological compliance.

Fortunately, FIRE doesn't roll that way. Neither should we.

You don't have to be a lawyer to grok how UMASS won The FIRE's Speech Code of the Year award. Bear in mind that's a booby prize, not a positive distinction.

In short:

UMASS, a state school, is bound by the First Amendment.

UMASS has a policy governing "rallies" on campus.

UMASS has a separate policy for "controversial" rallies. "Controversial" is not defined. "Controversial" will apparently mean whatever the people taking in the rally registration requests decide that day it means. Neither college administrators nor college students are known for good judgment or consistency in deciding what is "controversial."

"Controversial" rallies can only be held at one small place at UMASS, a rather large university. "Controversial" rallies may only be held during the lunch hour.

At a "controversial" rally, the sponsoring student organization must offer up six of its own members to act as security.

At a "controversial" rally, the sponsoring student organization is liable for any damage to the sound system, no matter who causes it.

"Controversial" rallies must be announced five business days in advance, as opposed to 24 hours for non-"controversial" rallies.

Let's be clear — this is a piss-poor effort at complying with First Amendment principles that have been well-defined for about a half-century.

My parents spent quite a lot to send me to college. I was very lucky because of that, and because I'd conned my way into a university far better than I deserved. So generally I took my work seriously. However, on occasion, when dealing with a class that I did not respect or take terribly seriously, I dashed out a crappy effort at a paper or assignment in the early morning hours — often after a bender — on my good old Apple IIe. This did not represent my best work or anyone's best work. This represented putting a sufficient number of words onto paper that could be said, broadly, to address the topic at hand in some manner.

Sometimes I wonder — do the people who draft college speech codes go on benders? Do they startle themselves awake at 3 a.m., suddenly sober and terrified and nauseous, realizing they have an important university policy due the next morning at 8:30 and haven't started to write or even researched the relevant issues yet? Do they calculate that nobody will ever actually read the policy before it's published, and that nobody will likely care if they do? Do they dash out some half-assed nonsense on their iMac, some arrangement of words and numbers that an extraordinarily generous person would call a policy?

Are college administrators people, too?

Remember Syracuse law professor Gregory Germain, whom Syracuse appointed as special prosecutor to investigate, and perhaps charge, Syracuse law student Len Audaer for the grave offense of satire?

He gets worse.

Apparently he's been having an email dialogue with Rochester Institute of Technology professor David Ross, a mathematician. A source shared one of these emails with me. If you think that was uncouth, rest assured that Professor Germain sent the email in question not just to Professor Ross, but also to — to — Jesus Christ, how many people is that? Has he never heard of the CAN SPAM Act? I'm too lazy to count those email addresses. It looks like about 20 lines of them, maybe 60 to 80 people. And he addresses them as "Dear Friends and Detractors." So I think I'm not in Wikileaks territory here, is what I'm saying. [Edit: even if, as I am now told, Prof. Germain was merely offering a reply-all to someone else's widely distributed email, his choice to voice what comes below to such a wide audience is meaningful, as you'll see.]

Anyway, Professor Germain's email further illuminates the values and attitudes that would lead an academic to embark on an investigation of a law student for writing a blog containing broad, obvious satire. He begins:

Dear Friends and Detractors:

I have spent a great deal of time responding to Professor Ross’s email questions and providing him with additional information.

Note the light touch Professor Germain uses in implying weary martyrdom resulting from his work replying to his detractors. It's a level of subtlety that distinguishes the Professor from a 13-year-old girl heaving a loud sigh at being asked about her homework again by her totally unfair parents.

He has been polite to me, and has recognized that the blog at issue in my case was less than aspirational (I will not quote his comments without his permission – maybe he will share his views with you).

Let's give Professor Germain the benefit of the doubt and decide that "less than aspirational" is gentle self-deprecating humor. The alternative is too grim. What kind of law professor, tasked to determine whether speech ought to be punished, focuses on whether the speech is aspirational — that is, directed to high-minded aims of which the professor approves? (Answer: a born censor.)

But we just don’t see the law the same way. I have been a practicing lawyer for 25 years, and a law professor for the past 8 years. Mr. Ross is a mathematician. You will have to decide which of us has a better understanding of the law.

At this point Professor Germain careens from inappropriate affect directly into cringe-inducing hubris. It's one thing to throw down with argumentum ad verecundium if you're arguing about pirating Weezer on an internet forum under the handle LAWD00D69. It's quite another for a tenured law professor to resort to argument by authority in the second paragraph of an email to a large crowd of professors. It's as good as a confession that you can't back your argument with cases or statutes or actual legal analysis.

And it's an unusually silly instance of argument by authority. The legal principles at issue here are neither complex nor obscure. Either Syracuse, a private entity, is going to punish people based on whatever speech restrictions it cares to devise, or its going to live up to its promises and stated principles and act as if its bound by the First Amendment. If it does that, the real-world analysis of Audaer's satire is straightforward.

Moreover, it's an unusually foolhardy argument by authority. Professor Germain "teaches and conducts research in the areas [sic] taxation, commercial law and bankruptcy and corporate law." He's arguing freedom of expression with the lawyers, founders, directors, and advisors of FIRE. For him to invoke argument by authority is roughly like me proposing to settle an argument with Brad Pitt and Angelina Jolie with a swimsuit competition.

Professor Germain's sneer at Professor Ross is pride talking. Professor Germain should have consulted a better authority about pride.

1. There are limitations on the ability to bring legal claims. They are called statutes of limitations. In the real world, investigations can go on for years before charges are brought. Many claims (like murder) have no statutes of limitations. In my world, claims against a student must be brought while the person is a student. After all, we can only impose academic sanctions. As long as they wish to attend our institution, we can bring charges under our rules. You can determine whether having potential charges “hanging over your head” for two months is too long. Suffice it to say that at this point the student has asked me to delay filing any charges, and I am doing so at his request for the time being.

Suffice it to say that Professor Germain is misleading his audience. He began his investigation in October. Len Audaer informs me that he and his counsel reached out to Professor Germain in December when they still hadn't heard anything, and it was only then that Audaer's counsel asked Germain not to make a charging decision until he had a choice to negotiate. The implication that Audaer has caused delay is false. Moreover, if Syracuse is living up to its rather dreadful architecture-based First Amendment promises and evaluating Audaer's speech based on recognized free speech principles, it shouldn't take two days, let alone two months, to evaluate whether the satirical blogs merit any sort of punishment. Read the handful of blog posts here and here, or at Audaer's site. This ain't mathematics. It's too obvious to be a good hour-long law school exam.

Of course, if Professor Germain and Syracuse are not following basic First Amendment principles — if they are part of the movement to undermine free speech principles under the guise of harassment and anti-discrimination concepts — then it might take time. But what are the chances of that?

2. I don’t want to comment on whether a particular student is innocent or not. That will be determined by a hearing panel on the basis of evidence that Mr. Ross has not seen if I file a complaint. Of course before bringing a complaint, I have to decide on the basis of the evidence I’ve learned from my investigation whether I think the student is innocent or guilty. The presumption of innocence applies to the court in the proceeding, not to the prosecutor. Otherwise, a prosecutor would never be able to bring charges.

True enough. But once again, how long should it take to decide based on those blog posts of whether Len Audaer is "guilty" of anything — if Syracuse is actually serious about respecting free speech principles?

3. Mr. Ross seems to believe that all terms like “harassment” need to be defined with mathematical precision to be valid. That’s just not a correct statement of how the law works. Harassment is an English word with a well understood standard usage and meaning. While it may be defined in specific ways in some codes, a rule can also use a term for its standard English meaning. That is how the law school has chosen to use the term. It may not satisfy a mathematician’s desire for absolute clarity, but it doesn’t have to do so. Of course, any student charged with a violation of our student code is free to advance the views of Mr. Ross in his defense, and it will be up to the hearing panel to determine whether the word “harassment” is so vague as to give no indication of what conduct might constitute a violation.

Anyone can be snide about communications or sociology or drama; it takes a law professor to be snide over a sustained period of time about math.

Here's the thing — if Professor Germain and Syracuse are not serious about their commitment to free expression, then "harassment" justifying official sanctions may, indeed, be based on the dictionary or on "standard English meaning" or on the aspirational beliefs of a university committee or on Professor Germain's personal feelings. But if Germain and Syracuse are looking to First Amendment principles, then there are a wealth of cases explaining the line between free speech and actionable harassment. If they are serious, Germain and Syracuse could look at a case like, say, Rodriguez v. Maricopa Cty. Community College District:

Plaintiffs no doubt feel demeaned by Kehowski's speech, as his very thesis can be understood to be that they are less than equal. But that highlights the problem with plaintiffs' suit. Their objection to Kehowski's speech is based entirely on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. See Brandenburg v. Ohio,395 U.S. 444, 448-49, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Saxe v. State Coll. Area Sch. Dist.,240 F.3d 200, 204 (3d Cir.2001); DeAngelis v. El Paso Mun. Police Officers Ass'n,51 F.3d 591, 596-97 (5th Cir.1995). "There is no categorical `harassment exception' to the First Amendment's free speech clause." Saxe, 240 F.3d at 204; see also United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, ___ L.Ed.2d ___ (2010) ("The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.").

Similarly, if Syracuse and Professor Germain are serious about freedom of expression, then they could take vagueness analysis seriously rather than sneering at it. If they believe the law is whatever they say it is, they probably won't.

4. I have shown Mr. Ross that the statements made by FIRE are misleading and inaccurate. Although he held me to an extremely high standard when I correctly quoted his statement without the preamble, he has strained himself to interpret FIRE’s statement to be based on some truth, and that’s apparently good enough to leave his bold assertion of FIRE’s perfect
accuracy intact.

5. I received many emails from people on the list who have dealt with FIRE and Mr. Ross before, and advised me that there was no point in trying to reason with either of them. While I don’t think Mr. Ross intends to mislead in the same way that FIRE has, I believe he has so committed himself to supporting FIRE that he is unable to see the flaws in their methods – even though their methods are the very antithesis of his beliefs in honest and respectful debate. Frankly, I think it’s sad. Nevertheless, I wish him and all of you well, and hope you all enjoy the holidays.

In criticizing university investigations of students for their speech, FIRE doesn't pull punches. Read Audaer's blog posts, and read FIRE's coverage, and read Professor Germain's irritated justifications, and then tell me if you think more civility and less outrage is called for. Read his evasions above, and tell me if you think FIRE is the one being misleading.

Some people are outraged by injustice. Some people are outraged by bigotry. Some people are outraged by suffering. And some people are outraged — some people simmer and seethe — when some damn interloper questions their authority. That's the outrage that moves the TSA. That's the outrage that leads to people getting arrested for contempt of cop. That's the outrage of petty authority. And Professor Germain's words show that that's what is moving him. How dare they?

But hey, what do you expect? As I've said before, the two leading influences on academic thinking about free expression on campus are head injury and tenure.

Some people can't abide being ridiculed. For that matter, some people can't abide being the subject of even the mildest satire. Their frail little psyches cannot stand it.

Apparently Syracuse University attracts such people, and academics sympathetic to them.

FIRE has been savaging Syracuse all month over its investigation of, and threatened administrative proceedings against, law student Len Audaer for the offense of writing a satirical blog at www.wordpress.sucolitis blog (now defunct) about the doings and inhabitants of the Syracuse University College of Law.

As FIRE repeatedly concedes, Syracuse is a private institution and not a state actor. It is therefore not bound by the First Amendment, and its administrators may therefore persecute students for foolish reasons using Star Chamber procedures to their dark autocratic little hearts' content, except to the extent federal or state statutes limit them. But Syracuse claims to protect and celebrate freedom of expression. They aggressively market themselves as respecting freedom of expression. Americans expect universities, public and private, to protect freedom of expression. When universities do not, they deserve to be regarded with suspicion and contempt — they deserve to be regarded as something different, something less, than a real university.

I'm not going to discuss what Audaer did, and what Syracuse did in response, in great detail. FIRE has offered a wealth of information. In brief, Audaer wrote satirical posts about fellow law students and members of the faculty and administration, as well as public figures. The satire is broad, obvious, and, to be frank, not particularly good. But only an abject idiot could mistake it for anything but satire. Some of it is skillful. Some of it is funny. Some of it is crass, mean, and sophomoric, like a post allegedly identifying a particular first year law student as being "especially slutty." [Ed.: Note December 22 update below about this issue.]

Somebody complained. Syracuse decided to appoint a "prosecutor" to investigate the blog and determine whether to bring formal charges against Audaer under the Syracuse discipline system. All of that — the fact that someone complained about satire, and that the school didn't immediately reject the complaint — is appalling enough.

But Syracuse, and specially appointed prosecutor Syracuse law professor Gregory Germain, are angry about the criticism and are doubling down. As is often the case, the attempted cover-up is worse than the initial conduct.

Professor Germain has filed a motion with the Syracuse disciplinary body demanding a gag order against Audaer and his defense team. He wants Syracuse to issue an order forbidding Audaer from disclosing the contents of his own blog, or anything he gets from the university about the proceedings against him, to any third party unless the third parties agree in writing (1) not to disclose the names of any of the people identified in those blog posts or documents without their consent, and (2) to publish the entirety of documents, not just quotes from them, "in order to prevent misleading selective posting of information."

In other words, Professor Germain thinks that Audaer should be prohibited from sending FIRE, or me, or the Chronicle of Higher Education, or CNN, an unredacted copy of this blog post without the written permission of Ellen DeGeneres. Professor Germain also thinks that Audaer should be prohibited from sending FIRE, or me, or anyone else one of his own blog posts, or any document from the proceedings against him, unless we agree to Professor Germain's preferred method of writing about it. Professor Germain explicitly demands censorship of documents as a method of getting the type of media coverage of the proceedings that he wants. Of course, no respectable reporter — and no self-respecting blogger, or American — would agree to present materials only in the manner that a censor demanded. Moreover, given an internet in which it is trivially easy for Syracuse and its supporters to host and publish the raw documents themselves, the demand for written guarantees of full publication as a method of achieving "fair" coverage is transparently dishonest and/or stupid. The gag order is deliberately calculated to prevent Audaer from distributing his blog posts and the documentation of his persecution at all.

The demand for anonymity of the "victims" of the alleged misconduct is particularly perverse because the "misconduct" is satire. Professor Germain is investigating the possibility that the satirical blog posts are "harassment" — currently a fashionable term in academic circles meaning pretty much whatever the academics want it to mean. But it's impossible to understand or evaluate satire without knowing its target. Hustler v. Falwell is the seminal case about satire, establishing that Jerry Falwell could not recover even if Hustler's satirical depiction of him having sex with his mother in an outhouse really hurt his feelings. You couldn't possibly evaluate Hustler's joke correctly without knowing whom it depicted, because, like most satire, it revolves around the identity of its subject — in this case, the joke is the satirical contrast between Falwell the public first-stone-thrower and eager moral scold and Falwell the incestuous outhouse abuser. The satire falls flat if it's written about anonymous Person X. Here, by demanding redaction of the satire, Professor Germain makes it impossible to evaluate its meaning — which is, no doubt, part of his goal.

Professor Germain defends his censorious ambitions very unconvincingly, at considerable length, and in a rather unbecomingly whiny fashion in a series of emails:

I don't like the way you use language such as "people like Professor Germain." What does "people like Professor Germain" mean? I'm bad and you're good?

The fact is, you don't know me or anything about me.

Gosh, Professor Germain, I think FIRE is referring to the class of persons generally known as censorious thugs with grave control issues who are overly proud of their petty authority. Your emails also demonstrate that they may be referring to people who can't abide criticism. It's only appropriate to appoint such a person to investigate a student for the crime of making fun of people. I suspect FIRE thinks all of that, but is too polite to say so. They're an awfully well-mannered bunch over there, really.

In his motion for a gag order, Professor Germain suggests that Audaer must be gagged so that his accusers need not fear that more people will know that somebody made fun of them on the internet:

The students, faculty and staff who were targeted in the sucolitis blog did not consent to have their good names used in the blog, and do not wish to be the subject of attacks on the internet. One of the students has expressed to the Prosecutor a concern for her physical safety. Most wish to find jobs in the legal profession, and feel that bringing further public attention through the publication of their names could damage their
employment opportunities, and would cause further humiliation and embarrassment.

Leave aside, for the moment, the ignorant and authoritarian proposition that people have some sort of right not to have their names used on the internet, and not to be "attacked" on the internet. Focus on this instead: Professor German suggests that the people satirized in the blog fear that having that satire spread further as a result of their own complaints about it would be unfair, because potential employers might see it and their feelings might be further hurt.

I interview, and hire, people at a law firm. I cannot imagine a situation in which I would decline to hire someone because they had been the target of satire. That's because I'm not a fucking idiot. Perhaps the subjects of Audaer's blog aspire to be hired by fucking idiots. It sure looks like they are going to the right school, then.

Syracuse's excuse for a disciplinary system apparently protects the anonymity of accusers, and supports efforts to prevent the publication of their identity. That's common with systems that have, as their true aim, the uncritical acceptance of accusations and the swift arrival at a predetermined conclusion of guilt. See, if you allow the identity of an accuser to become public, then all sorts of inconvenient things happen. They might suffer consequences for making false accusations. People might read about the case and come out of the woodwork and say "Vance Victim couldn't have been assaulted by the defendant on Saturday night; I saw him passed out over at Delta house that night," or "Vance Victim is the same guy who threatened to accuse me of assault twice last year", or "Vance Victim is a person with a reputation for being a liar and a cad." In short, That's why protection of accuser anonymity is repellent and inimical to modern systems of justice.

But Professor Germain does have the kernel of a point about privacy. It's just not the point he thinks he has. It's irrational to think that employers will be put off because a humor blog satirized you. However, it's entirely rational to fear that, if employers find out that you ran to the administration to complain about being satirized, they might not want to hire you. I would happily hire people of every color, religion, and sexual preference. I would hire Republicans and Democrats and Independents and Greens. But I would never, in a million years, hire someone who complained to his or her school administration about being the subject of satire. People who run to the authorities to complain about being the subject of satire are weaklings, crybabies, losers, and nasty censorious authoritarians. I view them as likely to be of sub-optimal intelligence, insufficient fortitude, and poor morals. Those are not the qualities of a reliable employee or a good lawyer. They are not people I want to hire or be friends with. They are people I want to ridicule and shun.

What should these students made fun of in the blog — including in the crass and mean portions — have done instead, if they felt ill-treated? They should have resorted to the marketplace of ideas. They should have created their own blog identifying Audaer as the blogger and mocking some of his shittier writing. They should have called him out in public or given him the cut direct. They should have shunned him from their social circles and study groups. They should have made certain, through Google, that every time someone looked him up, they would see that he was someone who thought referring to a particular 1L as "especially slutty" was funny satire. If they had done that, rather than retreating behind the skirts of petty authority, I would have respected them. Remember, supporting freedom of expression does not mean you have to agree with or support the content of the expression or the people who utter it. Many of them are assholes.

Update on December 22, 2010: An informed source tells me that (1) the links in this post to the pdfs of the blog represent all of the articles the blog ever ran (so you don't have to find them, those links are here and here), and (2) as a review of those blog posts show, Audaer never wrote that anyone was "especially slutty"; that's apparently a mistake by the student quoted in one of the linked articles. That changes my view somewhat. If the posts linked (in redacted form) by FIRE represent all the posts Audaer ever wrote, then it's even clearer that they are all satirical, and there's nothing in them close to referring to someone as "especially slutty." They're still not to my taste, and I suppose that one or two could even be characterized as mean. But you'd have to be pretty damned thin-skinned to get in a huff over them. Syracuse's investigation becomes even more appalling, and Professor Germain's belief that these posts might plausibly represent harassment becomes even more transparently bogus.

In addition, it appears that Mr. Audaer has a web site discussing Syracuse's proceedings against him, here. That site also has copies of the redacted posts and links to other commentary on the case.