Free Speech | Le·gal In·sur·rec·tion - Part 58
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Posted by William A. Jacobson on August 22, 2014 11 Comments
Prior to a few minutes ago, the University of Illinois at Urbana-Champaign had not commented publicly about the reasoning behind the decision not to complete the hiring process for Professor Steven Salaita. There was a lot of protest, including a petition and academic boycotts, meant to pressure the university into changing its mind.  That does not appear to be happening, from the latest news report. That, of course, does not preclude some sort of financial settlement, which might take into account that Salaita resigned his prior tenured position at Virginia Tech before learning his contingent offer from UI-UC would not be approved. The Urbana-Champaign News-Gazette now reports that Chancellor Phyllis Wise has sent a campus-wide email:
In her first public statement about Professor Steven Salaita, University of Illinois Chancellor Phyllis Wise said her decision to not forward his appointment to trustees for formal approval was not influenced by his criticism of Israel. The university, she said, cannot tolerate “personal and disrespectful words or actions that demean and abuse either viewpoints themselves or those who express them.” “We have a particular duty to our students to ensure that they live in a community of scholarship that challenges their assumptions about the world but that also respects their rights as individuals. A Jewish student, a Palestinian student, or any student of any faith or background must feel confident that personal views can be expressed and that philosophical disagreements with a faculty member can be debated in a civil, thoughtful and mutually respectful manner. Most important, every student must know that every instructor recognizes and values that student as a human being. If we have lost that, we have lost much more than our standing as a world-class institution of higher education,” Wise sent in a mass e-mail to the campus community Friday afternoon.
(Update) In addition, later in the afternoon, the Board of Trustees, the Chancellors of the Chicago and Springfield campuses, numerous university senior officials, and the President of the Faculty Senates, issues a statement supporting the decision. The full Chancellor email, as reprinted by the News-Gazette, is as follows (added -- original email here):

Posted by Amy Miller on July 30, 2014 47 Comments
A long legal battle ended Tuesday as federal jury awarded former Minnesota Governor Jesse Ventura over a million dollars in damages in his defamation lawsuit against the widow of "American Sniper" Chris Kyle. Ventura sued widow Tara Kyle over her husband Chris Kyle's depiction of Ventura's participation in a 2006 bar fight. From the AP:
A federal jury sided with Ventura in his lawsuit against "American Sniper" author Chris Kyle, who was killed last year in Texas. Though Ventura honed a tough-guy reputation as a pro wrestler and action movie actor, he maintained the legal battle was about clearing his name among his beloved fellow Navy SEALs, not about losing a supposed fight. Kyle — reputed to be the deadliest sniper in U.S. military history — said in his memoir that he punched Ventura in California in 2006 after Ventura said the SEALs "deserved to lose a few" in Iraq. Ventura disputed that the confrontation, including the punch, ever happened.
An 8-2 jury awarded Ventura $500,000 for defamation and $1.3 million under the theory of unjust enrichment, saying that a portion of Kyle's profits from his book were gained at the expense of Ventura's reputation. After threats of a hung jury plagued the courtroom, lawyers on both sides agreed to accept a verdict if 8 of the jurors agreed as to the result. Although it's likely that the unjust enrichment portion of the damages will be paid by publisher HarperCollins' insurance policy, Ventura's attorneys are expected to go one step further by demanding HarperCollins remove the disputed section from Kyle's book.

Posted by Andrew Branca on July 16, 2014 48 Comments
It is axiomatic that the freedom of speech provisions of the 1st Amendment of the US Constitution are specifically intended to protect unpopular and/or offensive speech. After all, speech that is neither unpopular nor offensive is, obviously, not in need of any particular protections.  It is equally indisputable that of all the various forms of speech possible, it is political and religious speech that lies at the heart of 1st Amendment protections.

Meet Todd Kincannon, that &$(#*&%! Lawyer from South Carolina

In the context of the Conservative polito-sphere one of the greatest founts of offensive conservative political and religious speech is South Carolina lawyer (and former head of the SC Republican Party) Todd Kincannon, particularly through the vehicle of his Twitter account, @Todd__Kincannon (note that there are two underscores). Despite Todd’s in-your-face, abrasive political and religious speech—or, as seems more likely, precisely because of it—the @Todd__Kincannon Twitter account has acquired in excess of 50,000 followers. To put this figure in some context, this very highly successful and well-respected legal blog on which I am writing this post has just over 14,000 followers of its @LegInsurrection Twitter account. My own @LawSelfDefense Twitter account has only about 4,000 followers.

Kincannon Reports SC Officials Are Threatening His Law License Over Speech

Todd is now reporting that the South Carolina governmental authorities responsible for governing the professional conduct and ethics of attorneys have decided that Todd’s conservative political and religious advocacy on Twitter, and elsewhere, is too offensive to be permitted, and needs to be gagged. Specifically, Todd has written that the South Carolina Commission on Lawyer Conduct and the South Carolina Office of Disciplinary Counsel have informed him that his political and religious commentary is “unethical” to a degree sufficient to warrant legal sanction to the point of disbarment. (The South Carolina Judicial Department definitions of lawyer misconduct can be found here: Rule 8.4: Misconduct.) More specifically, Todd writes that these governmental agencies have threatened him with disbarment should he proceed with his planned publication of a book advocating conservative political and religious beliefs. This past June they also informed Todd that following a two-year investigation based on a small number of complaints—none alleging anything other than offensive political and religious speech—they were electing to continue rather than cease the investigation because of comments Todd had made on his @Todd__Kincannon Twitter account regarding a left-wing political activist. As a result, Todd felt compelled to cease his Twitter communications effective June 22, and he has been silent in that forum since then. In short, these South Carolina government officials are purportedly seeking to strip Todd of his professional license to practice law based solely upon his Constitutionally protected exercise of his right to freedom of political and religious speech.

Kincannon Breaks Silence With Email to Purchasers of His Book

Todd revealed this current state of affairs in an email released to persons who had pre-ordered copies of his book, in explanation for why they would not be receiving their ordered books in as timely a manner as they had expected.

Posted by Jack Park on June 17, 2014 8 Comments
On its face, Monday’s unanimous decision by the U.S. Supreme Court in SBA List v. Driehaus is about when a claim of future injury is sufficiently well-grounded to allow someone to file a lawsuit to stop it. But, the decision is really about the regulation of political speech. In their incisive and hilarious friend of the court brief, the Cato Institute and P. J. O’Rourke noted, “The campaign promise (and its subsequent violation), as well as disparaging statements about one’s opponent (whether true, mostly true, mostly not true, or entirely fantastic) are cornerstones of American democracy.” Ohio (and others, including some in Congress) thinks that’s a problem. In the 2010 congressional cycle, the Susan B. Anthony List (SBA List) wanted to put up a billboard stating, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” That billboard didn’t go up because its target, then-U.S. Representative Steve Driehaus threatened legal action. Driehaus also filed a complaint with the Ohio Elections Commission asserting that SBA List’s billboard violated Ohio law because it was “false.” The Commission found probable cause to think Driehaus was right and scheduled a hearing. That probable cause determination turned Driehaus loose to pursue discovery, which he did intrusively, noticing depositions of SBA List employees and others and asking for not just evidence supporting SBA List’s interpretation of the Affordable Care act but also for its “communications with allied organizations, political party committees, and Members of Congress and their staffs.” SBA List filed suit to challenge the constitutionality of Ohio’s false statement laws. The election intervened, however, and Driehaus dismissed his complaint after he was defeated. The district court then dismissed SBA List’s lawsuit because it was no longer ripe, and the Sixth Circuit affirmed that ruling. The Supreme Court unanimously reversed the Sixth Circuit, allowing SBA List and others to challenge the restrictions on their political speech.

Posted by William A. Jacobson on May 26, 2014 30 Comments
The attacks on a University of Virginia law professor for expressing legal views not in keeping with the views of some LGBT activists and much of the political establishment has created a stir in legal academia. In Jamaica, a somewhat analogous case is developing regarding a recently retired professor who was fired from his continuing HIV/AIDS research position after filing an accurate, but politically incorrect, expert report in a highly contentious case in Belize (h/t Blazing Cat Fur). The case has received almost no attention outside the Caribbean press, and none in the U.S. as far as I can tell. The background is that the Belize Supreme Court is considering a court case seeking to overturn Section 53 of the criminal code, which bans some forms of homosexual behavior, specifically male-on-male sodomy. Argument was held in May 2013 but there has been no decision as of this writing. The highly charged nature of the case pits a coalition of international gay rights activists against some Christian churches and groups. Enter Dr. Brendan Bain, who retired as a Professor in 2013 from the University of West Indies.  While still a professor, in 2012 Dr. Bain submitted testimony in the form of an Expert Report in the case (embedded in full at the bottom of this post). Dr. Bain is one of the pioneers in the fight against the spread of HIV/AIDS in the Caribbean, as detailed in the introduction to his Expert Report, and in the numerous news reports referenced later in this post. [caption id="attachment_87310" align="alignnone" width="454"]Dr. Brendan Bain by Steve Shapiro for the 2011 Caribbean HIV Conference (Dr. Brendan Bain,by Steve Shapiro for the 2011 Caribbean HIV Conference, used under an Attribution-NoDerivs 2.0 Generic Creative Commons license.)[/caption] Among other things, even after his retirement as a professor Dr. Bain was director of the U.S.-funded Regional Coordinating Unit of the Caribbean HIV/AIDS Regional Training (CHART), which he helped create.  Here is his bio from 2013 from the CHART website:

Posted by William A. Jacobson on March 20, 2014 23 Comments
University of North Carolina at Wilmington professor Michael Adams has won his discrimination lawsuit, in a jury verdict rendered today. The judge now will rule on damages. The Jury Verdict form and Judgment are embedded at the bottom of this post. Adams was the professor who wrote the viral response to another professor who called Adams an "embarrassment" to higher education. The case involved claims that Adams was subjected to discriminatory retaliation for expressing his Christian religious and politically conservative views. We have uploaded the Amended Complaint and Answer to the Amended Complaint. Alliance Defending Freedom, which represented Adams, described the case as follows:
Dr. Mike Adams, a criminology professor at the University of North Carolina–Wilmington, frequently received accolades from his colleagues after the university hired him as an assistant professor in 1993 and promoted him to associate professor in 1998. At the time he was an atheist, but his conversion to Christianity in 2000 impacted his views on political and social issues. After this, he was subjected to intrusive investigations, baseless accusations, and the denial of promotion to full professor even though his scholarly output surpassed that of almost all of his colleagues. In a lawsuit filed against the university on Adams’ behalf, Alliance Defending Freedom attorneys contended that the university denied Adams a promotion because his nationally syndicated opinion columns espoused religious and political views that ran contrary to the opinions held by university officials.
The jury found that Adams' "speech activity [was] a substantial or motivating factor in the defendants' decision to not promote" Adams, and that the defendants' would not have reached the same decision "in the absence of the plaintiff's speech activity". Adams v UNC - Wilmington - Jury Verdict Form Answers The Judge now will resolve the damages, as set forth in the Judgment:

Posted by William A. Jacobson on March 13, 2014 4 Comments
We previously wrote about the lawfare against Ezra Levant, We Stand With Ezra. The case now is in trial, and Ezra has an update: You can donate to Ezra's defense fund here. After you donate, sit back and enjoy Ezra’s Opening Statement in the 2008 Human Rights Commission case brought against him over the publication of the Mohammed cartoon:

Posted by William A. Jacobson on February 15, 2014 28 Comments
Prof. KC Johnson, best known for his investigative work regarding abysmal university and faculty handling of the Duke Lacrosse case, has a post at Minding the Campus regarding a disturbing appointment at Dartmouth, 'Why Have a Hearing? Just Expel Him':
"Why could we not expel a student based on an allegation?" That astonishing question was posed at a conference on how colleges respond to sexual assault issues by Amanda Childress, Sexual Assault Awareness Program coordinator at Dartmouth. According to Inside Higher Ed, Childress continued: "It seems to me that we value fair and equitable processes more than we value the safety of our students. And higher education is not a right. Safety is a right. Higher education is a privilege." Give Childress credit for candor--even the campus spokespersons for increasing the number of guilty findings in campus tribunals usually aren't so bald in their disdain for basic principles of due process. Childress' jarring remarks coincided with news that Dartmouth had promoted her, and given her additional power over the college's sexual assault policies. Last Friday, the college announced that Childress will head the newly-created Center for Community Action and Prevention, which Childress said would "be the focal point on campus for Dartmouth's sexual assault and violence prevention initiatives" and "drive the College's mobilization efforts around preventing sexual violence and increasing the safety and well-being of all members of our community." (All members, it seems, except students facing unsubstantiated allegations of sexual assault.) Incredibly, Dartmouth theater professor Paul Hackett suggested that despite Childress' appointment, the college isn't going far enough on the issue.

Posted by Laurel Conrad on November 10, 2013 9 Comments
In October, Brown University protesters prevented New York City Police Chief Ray Kelly from speaking. During Kelly's talk, titled “Proactive Policing in America’s Biggest City,” protesters loudly chanted slogans and read prepared text, drowning out Kelly. A university administrator tried to reason with the protesters, but to no avail. As a result, after a failed half-hour attempt at regaining control of the room, the lecture was cancelled. As covered extensively at Legal Insurrection, the protesters have received support from several professors, two of whom also are active in the anti-Israel movement. Leftist and anti-Israel shout downs are just about the only shout downs on campus these days. But don't think it's just Brown. There is a long history of liberals and anti-Israeli groups shouting down speakers with whom they disagree. Here are five examples other than Brown:

1. Congressman Tancredo at UNC

In 2009, students at the University of North Carolina, Chapel Hill, brought Republican Congressman Tom Tancredo's talk about illegal immigration to a halt by shouting him down. When Tancredo asked ironically, "This is the free speech crowd, right?" a student responded, "not for hate speech!" The students continued to chant, "No dialogue with hate!" as Tancredo struggled to get across a single word.

Posted by William A. Jacobson on November 03, 2013 31 Comments

I have been following various faculty reactions to the Ray Kelly shout-down, including from Political Science Professor Marion Orr who apologized for inviting Kelly, and Biology Professor Ken Miller who issued a forceful denunciation of the shout-down. So when I saw an article in The Brown...

Posted by William A. Jacobson on November 01, 2013 52 Comments
There was some real angry ugliness at Brown University Tuesday night, as NYC Police Commissioner Ray Kelly was shouted down and his lecture shut down. There has been celebration in some circles at Brown, but not from Biology Professor Ken Miller, a Brown grad himself. Miller wrote a wonderful letter to the Brown Daily Herald about his experience hearing George Lincoln Rockwell, leader of the American Nazi Party, speak at Brown in the late 1960s, and how it compared to the shout down of Kelly. Read the whole thing, this excerpt will not do it justice:
I went to scores of seminars and talks during my four years as an undergraduate at Brown, but the one I will never forget took place on the evening of Nov. 30, 1966.The speaker, a Brown alum, had been invited by the Faunce House Board of Governors to take part in its fall lecture series. But once his name was announced, a storm of objections forced the board to withdraw its invitation. Counterprotests ensued citing academic freedom and arguing that our campus should be open to all views, even — and perhaps especially — to those a majority of its members found repugnant. The speaker was George Lincoln Rockwell ’40, leader of the American Nazi Party. A new campus group called “Open Mind” was formed. Once recognized by the University, it re-invited Rockwell to campus. Rockwell spoke to a packed house in Alumnae Hall.... For the first time in my life, I understood the allure of fascism, the reason that “good people” could have supported the likes of Franco, Mussolini and Hitler. I also understood why the notion that “it couldn’t happen here” is hopelessly naive. It could happen here, and it most certainly would happen if we forgot the lessons of history, lessons that Rockwell brought to life with a sinister smile that evening in Alumnae Hall. I’m glad I was there. I’m glad the talk was allowed to go on. And I’m glad Brown was an open campus where those lessons could be learned in the most personal way possible.

Posted by William A. Jacobson on October 31, 2013 38 Comments
We previously have reported on the shout down of NYC Police Commissioner Ray Kelly at Brown University on Tuesday, causing cancellation of his lecture: A public forum was held at Brown last night to discuss the controversy generated by preventing Kelly from speaking.  The forum was reported live by multiple campus student publications. One of the early speakers was Marion Orr, Professor of Political Science, Public Policy and Urban Studies.  Orr also is Director of the A. Alfred Taubman Center for Public Policy and American Institutions, which invited Kelly. Orr apologized "especially to my black students and Latino brothers and sisters" for the "hurt" he caused by inviting Kelly, and indicated he did not expect such a reaction. Orr also requested a list of people he should not invite in the future. I spoke with Orr, who said that he meant that request for a list as "tongue in cheek" and that everyone in the room understood that he did not really want such a list. Orr said that he was trying to make a point along the lines of "do you really want to have a list?" Orr did not dispute the substance of the quotes attributed to him regarding the list, but disputed what he meant by the request. The Brown Daily Herald reported, Hundreds assemble to confront Kelly controversy (emphasis added):
Marion Orr, director of the Taubman Center, which sponsored Kelly’s lecture, expressed regret for the controversy. “I sincerely apologize to my students,” Orr said. “Especially to my black students and Latino brothers and sisters — it wasn’t my intention to hurt you, and it hurts me to hear that my decision caused so much pain.” Orr asked the students to submit a list of speakers whom they would not approve of coming to campus, adding that he never expected the intense reaction to Kelly’s event.
The Daily Herald also had a live blog, and reported the exchange as follows (author name, time and graphics removed for ease of reading, but available at the link):

Posted by William A. Jacobson on October 31, 2013 46 Comments

Jenny Li is a Brown University student, a fellow at the People for the American Way Foundation, helps run Brown Asian Sisters Empowered, and is an environmental activist who is Executive Director of the Brown emPower environmental group: She's also someone who was proud to shut...

Posted by William A. Jacobson on October 30, 2013 29 Comments
In our two prior posts, we explained how NYC Police Commissioner Ray Kelly was shouted down at Brown University by protesters against NYC's stop and frisk policy: The protesters decided that others should not get to hear what Kelly had to say on the topic.  One protester, Jenny Li (pictured above) revelled in the shut down:
So we drafted a petition last Thursday and as of today [October 29, 2013] there are over 500 signatures. We delivered it to the Taubman Center [at Brown] and they didn't respond to our demand to cancel the lecture, so today we cancelled it for them.
It probably will not surprise you that Li is a fellow at the People for the American Way Foundation, the liberal activist group that runs the Right Wing Watch blog among other activities. Author Mychal Denzel Smith writing at The Nation plays into every stereotype of liberal intolerance in supporting the shout down, and terming it "glorious", Brown University Booed Ray Kelly and Racism (emphasis added):

The Nation Ray Kelly Booed

NYPD Commissioner Ray Kelly of stop-and-frisk fame was scheduled to speak at Brown University yesterday and deliver the school's annual Noah Krieger '93 Memorial Lecture. The title of his speech, and I'm not making this up, was "Proactive Policing in America's Biggest City." What happened instead was glorious.