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« American Journal of Legal History, December 2017 Issue | Main | Northwestern University Law Review Exclusive Submission Window »

December 13, 2017


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Wiliam Markle

In other words, with respect to speech, restraint not restraints. A sober, sophisticated, and nuanced view. If only such views could retain currency in our present climate.

Deep State Special Legal Counsel

Kayla Moore said it best: One of his attorneys is a JEW!

Howard Wasserman

With respect to not teaching required courses: What was your view about the demand by some students at Penn for Amy Wax to no longer be permitted to teach required (read: 1L) courses following her "some cultures are better than others" op-ed? Because many people do not see a difference between that piece and the anti-Semitic cartoons at issue here. So if no required classes can be a sanction for a professor's objectionable/hateful/hurtful speech, there are not going to be many people around to teach required courses.

Steve L.

That is a fair question, Howard. It would not violate Professor Wax's academic freedom to assign her only to non-required courses, which has not happened at Penn. Your conclusion -- "there are not going to be many people around to teach required courses" -- is empirically incorrect.

Alexander Tsesis

Thanks so very much for this thoughtful three part series. The blatancy of the antisemitism in these examples is so revoltingly clear and the long history of that hatred so manifest in hate crimes in the U.S. and around the world, that Howard's view beguiling.

As almost every democracy in the world, the United Nations, and the European Union recognize the dissemination of antisemitism has been instrumental in historical and contemporary hatred, discrimination, alienation, disaffection, devaluation, pogroms, scapegoatism, and attempted genocide of Jews.

Context, content, and viewpoints matter. The categorical defense of speech is ahistorical, wedded to libertarian theory, and tied to pre-World War II notions of the benign nature of speech, without recognizing its centrality, impetus, and indispensability in stirring genocide, lynchings, misethnic violence, and discrimination.

It's difficult to image university administrations acting so blase toward professors expressing any comparable form of blatant discrimination. As the former United States Secretary of the Treasury Lawrence Summers pointed out, “[W]ith very few exceptions, university leaders who are so quick to stand up against microaggressions against other groups remain silent in the face of antisemitism.”


AT's final paragraph is the key here: why are universities, so quick to condemn even the slightest implication of any untoward bias in other contexts, so ignorant, oblivious or tolerant of Jew hate?

My impression is that the reason is simple: Jew hate is ubiquitous and accepted.

Put in the place of the Jew any other "protected class" and it is obvious that the standards are different.

The real defense is, as usual, about money. Jew haters perceive Jews as rich, powerful and successful. They imagine that their discrimination against Jews is meaningless, because "the Jew," unlike others, will do exceedingly well despite the obstacles that Jew haters put in the way.

This is, of course, a false assumption. Jew hate hurts individuals every single day in legal academia, but, legal academia cannot even admit there is a problem. How then can this problem be addressed?

Alan Jay Weisbard

I largely agree with the comments by Alexander Tsesis, above. The impact of destructive speech communicated through social media and other avenues on the internet is greatly multiplied from what we have been used to, as is the potential for reprisals by trolls and organized groups. I am not sure what the right answer will turn out to be, but I think we need to rethink some prior views on academic freedom in light of these new technologies and social practices. I am not convinced that the Holmesian marketplace of ideas can be trusted to work effectively given current communicative technologies. Nor am I convinced that we can, should, or must tolerate the extreme forms of hate speech that seem to be becoming ever more common. Perhaps we will reaffirm present conceptions of and existing commitments to free speech and academic freedom, but I am not certain that should be taken for granted.


Yes, of course, the choice is between free speech and academic freedom on the one hand, and Jew hate expression on the other.

What a load. Only an academic know nothing could conceive of such a mindless formulation: a fallacy of the false alternative that really defies our common sense and common experience.

We all know how hate speech is dealt with when the targets have been members of the "protected" (i.e., favored) groups ... Jews are simply a legitimate target, an unfavored group.

Stop the posturing and the pretense, please.

Deep State Special Legal Counsel


I hesitate to respond to your post, because it smacks of derision. Maybe I am wrong. Hate Speech is a subset of Free Speech, protected yes. Can't have a prior restraint imposed on it. However, that doesn't mean there are NO consequences to uttering it. In this nation, you are free to be stupid, be a criminal, do drugs, eat till you are 600 pounds, be greedy, and shout from the highest mountain hateful things about other people. Under our law, you suffer the consequences of your "free" behavior.


Steve, great series overall and very interesting.

And a question for Steve and for Howard (similar to one I posed under another in this series but right at the close of the comment period):

If offending profs are permitted to teach only elective courses, are the courses they do teach also going to be offered by other professors? In my school, many of the more interesting late 2L and 3L classes were only taught by the one prof who had an interest in doing so.

If not, having such profs teach only non-required courses seems like half a solution, and still a limitation on Jewish students' access to courses they might want to take. Or they have to gird their loins and take a course from someone whose behavior has shown may be strongly biased against them...


DSSLC: "In this nation, you are free to be stupid, be a criminal, do drugs, eat till you are 600 pounds, be greedy, and shout from the highest mountain"

Five of these things are not like the other,
Five of these things just do not belong,
Can you guess which five are not like the other,
Now before my song is done?
And now my song is done!


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