Hey, PoPo–Leave Those Kids Alone

Is the behavior described in this story immoral? Yes. Stupid? Yes. Punishment-worthy? Maybe. But the appropriate subject of a police investigation? No.

We’re all justifiably outraged when someone calls the cops on black people engaged in some innocuous activity–be it barbecuing, babysitting, or whatever. But calling the cops to “assist” in a school investigation into fascist speech is no better than that, and fundamentally, no different. It’s a misuse of the powers of the police, and yet another illegitimate broadening of the scope of their activities. Continue reading

Documenting a Police Detention (2): The Long and Short of It

All history was a palimpsest, scraped clean and reinscribed exactly as often as necessary. In no case would it have been possible, once the deed was done, to prove that any falsification had taken place. –George Orwell, 1984

As readers of this blog know, on November 29, 2017, I was detained and interrogated for several hours by members of the Lodi Police Department and Bergen County Prosecutors Office on suspicion of being an “active shooter.” Though I was not formally charged with a crime, my detention was arguably tantamount to a full arrest: I was involuntarily transported from the original place of detention to a nearby police station, involuntarily held there for a few hours, and involuntarily questioned, despite repeated invocations of my Fifth Amendment right to remain silent. Eventually, I was released without further incident.

A few weeks ago, I sent Open Public Records Act requests to both agencies for documentation of my detention. The Lodi Police Department responded to my request with a 21 page document. The Bergen County Prosecutors Office responded with a one page letter. Both sets of documents are instructive, both for what they say and for what they omit.  Continue reading

Disruptions on Campus: There’s Always an Excuse for Israel

A passage from a blog post by Steve Horwitz at BHL:

Here are a few thoughts for college libertarians who are able to invite speakers to campus and how they might do so in the most productive ways.

Let me start by saying that the sort of interruptions we’ve seen this week with Yaron Brook and Christina Hoff Sommers are utterly unacceptable. Those who disrupt planned presentations with official permission to use space and students expecting a talk should be forcibly removed from the room and subject to the relevant disciplinary consequences. There should be no negotiating with anti-intellectual terrorists. They should feel free to ask questions when the time comes or protest outside the building in ways that do not prevent those who wish to attend from attending. No excuses.

A question for Horwitz et al: what if “those who disrupt planned presentations with official permission to use space” on campus call themselves “the Israel Defense Forces” (IDF) and are sent by something that calls itself the Civil Administration of Judea and Samaria? Should they be “forcibly removed”? Forcibly removing them is what a policy of “no excuses” would really entail. Continue reading

Nervous Shakedown: Scenes from a Police Detention (1)

On the morning of November 29, 2017, I taught my 8:15 am ethics class in Kirby Hall at Felician University’s Lodi campus. Having taught class, I returned to my third-floor office in Kirby around 9:30. At a little after 10 am, I received a call from Dr. Edward Ogle, the University’s Vice President for Academic Affairs (hereafter, “VPAA”). The VPAA asked me to come to his office immediately, as something “urgent” had come up, offering no further elaboration. I told him I was on my way. I put on my coat and took my wallet, leaving my phone in my desk. As I left the building, I was met by the VPAA in the company of two uniformed officers of the Lodi Police Department. The VPAA asked me to accompany him to his office in the company of the officers, and I did.

On reaching his office, we encountered a third uniformed officer, apparently a sergeant, who said: “You’re not under arrest, but you’re being held.” He then read me my rights. I remember his mentioning my right to remain silent, but don’t remember whether he informed me of a right to have an attorney present. He then asked whether I understood my rights. I said I did. He asked me whether I was willing to discuss the matter at hand. “No,” I said. “Well,” he said, “that makes things easier,” walking into a nearby hallway to make a phone call. I heard only one sentence from the sergeant’s end of the call: “Nothing. He hasn’t said anything.” Which was true enough, and stayed that way all afternoon. Continue reading

Firebrands Unite

From this morning’s New York Times: the print headline reads: “Anti-Muslim Firebrands Are Arrested in Britain.” For what? Well.

Paul Golding, the leader of Britain First, was detained in Belfast, Northern Ireland, the group said, where he was accompanying his deputy, Jayda Fransen, to her court hearing on earlier charges related to using “threatening, abusive, insulting words or behavior” during an anti-Islam speech in August that prosecutors said could qualify as incitement to racial hatred. She has denied the charges.

Shortly after her court appearance, British news media said she was arrested again, this time as part of a police investigation into “an incident at a peace wall” in Belfast on Wednesday.

Earlier, the Police Service of Northern Ireland said on Twitter that detectives investigating speeches made at the Northern Ireland Against Terrorism Rally on Aug. 6 “have arrested a 35-year-old man in the Belfast area today.” The post did not identify Mr. Golding or the offense.

Gee, sounds familiar in a weird, mirror-image kind of way. Naturally, it’s completely unclear what the suspects did or said: the police won’t say, the journalists don’t know, and so, the rest of us are in the dark. “An incident at a peace wall.” What kind of incident? “An incident at a peace wall” almost sounds like a second invasion of Poland. Never mind, though: this sort of opacity is Standard Operating Procedure for the 21st Century Thought Police. And there are people who like it this way. Some even regard themselves as bien pensant liberals. Continue reading

A Memo to Friends and Colleagues

I wanted to take a moment to thank the many friends and colleagues, especially those at Felician University, who have expressed their support for me following my police detention of Wednesday, November 29th. I deeply appreciate the support you’ve sent my way. Indeed, my gratitude extends to the many jokes–some of them pretty funny–that have been made at my expense, my personal favorite being someone’s description of my detention as “something out a sitcom co-written by Michel Foucault and Flavor Flav.”

My brother’s idea of “moral support”

For now, suffice it to say that I was involuntarily detained on that date for several hours by the Lodi Police Department and Bergen County Prosecutor’s Office, involuntarily transported to the Lodi police station, held and questioned there, and asked to give consent to search my car and “premises.” Continue reading

Free Speech for the Mum

Consider the following scenario, a commonplace of academic life. A professor decides to devote part of his ethics class to the ethics and economics of higher education, with readings on the value of the BA degree, and on the place of athletics in higher education. To focus the conversation, the professor cites examples drawn from the students’ experience at their home institution. In the course of doing so, the students give voice to complaints about the institution. The professor acknowledges the complaints, not necessarily agreeing or disagreeing with them.

Taking the acknowledgement as agreement, students give voice to their grievances against the university on social media, citing what they take to be their professor’s support for those grievances. The university’s administration, sensitive to PR issues, catches wind of the student’s claims, and notes the apparent support for those claims offered by members of the faculty. The faculty member is then called before the Dean and a witness to give an accounting of the affair. Continue reading

A Teenager Shall Lead Them

I’ve written before about the resort to force and intimidation in discussions of Palestinian-Israeli issues, but here’s an outrageous case– and one that hits close to home. From The New York Times, “Tweets About Israel Land New Jersey Student in Principal’s Office“:

A New Jersey high school student found herself in a social media storm on Wednesday after she live-tweeted and apparently secretly recorded a trip to her principal’s office.

She said administrators warned her that her comments about Israel and a fellow student on Twitter might have violated a state law against bullying.

The student, Bethany Koval, a 16-year-old Israeli Jew, said she had been reprimanded by administrators at Fair Lawn High School in Bergen County for a tweet that contained a string of expletives directed at Israel and expressed happiness that a pro-Israel classmate had unfollowed her Twitter account.

New Jersey has some of the toughest anti-bullying laws in the nation. After the suicide of a Rutgers University freshman, Tyler Clementi, in 2010, it passed the Anti-Bullying Bill of Rights, a far-reaching law with stiff penalties for educators who do not sufficiently respond to complaints of harassment or intimidation.

Read the whole thing for a fuller account of the story. Here’s a January 7 story from the Bergen Record, and here’s a January 8 story from the same place. Muftah reproduces some of the tweets involved. (Unfortunately, Koval’s Twitter feed is no longer operating in the public domain.) Fair Lawn, by the way, is just a few towns west of Lodi, where I teach.

Setting aside whatever narrowly legalistic insanities may reside within the various “anti-bullying” statutes, this is not a morally complex matter. A high school student tweets her political views about Israel. Some of what she says contains profanity. Some is sympathetic to, or appeasing of, Hamas. Some of her peers don’t like what she says. She gets some verbal flak from some of them. One “unfollows” her Twitter account. She doesn’t reveal the “unfollower’s” name in public, but reveals it to someone privately.

Continue reading

The Criminalization of Curiosity

Here’s another glorious contribution to the “ISIS-is-coming-so-let’s-turn-our-brains-off-in-abject-terror-and-think-of-more-rights-to-violate” literature. This one is by Eric Posner, son of Richard Posner, and evidence for the old saw that some apples fall in close proximity to the trees whence they came.

Eric Posner’s suggestion? Let’s pass a law that criminalizes the act of accessing an ISIS website, on the premise that ISIS’s propaganda has the causal powers of a cognitive virus that incapacitates people’s minds and drags them involuntarily into terrorist acts.

Consider a law that makes it a crime to access websites that glorify, express support for, or provide encouragement for ISIS or support recruitment by ISIS; to distribute links to those websites or videos, images, or text taken from those websites; or to encourage people to access such websites by supplying them with links or instructions. …

The law would provide graduated penalties. After the first violation, a person would receive a warning letter from the government; subsequent violations would result in fines or prison sentences.

But don’t worry: exceptions “could” be made

for people who can show that they have a legitimate interest in viewing ISIS websites. Press credentials, a track record of legitimate public commentary on blogs and elsewhere, academic affiliations, employment in a security agency, and the like would serve as adequate proof (my emphases).

What are the chances that “legitimate” and “the like” can be defined in a non-circular way?

And what about people without press credentials, etc.? What about people just starting out in “public commentary,” and therefore lacking a track record? Or people with a sense of curiosity, idle or otherwise, who would simply like to get a first-hand knowledge of what ISIS is about, rather than relying on “experts” picked by “the likes” of Eric Posner? Do non-credentialed people no longer have rights to free speech, or are rights reserved to a special, arbitrarily defined elite with credentials that demonstrate their worthiness to have them?

The latter, evidently. Any remaining worries can be dispatched by that old jurisprudential stand-by, “the balancing test.”

A simple balancing test would permit laws to target dangerous speech that does not advance public debate.

“A simple balancing test”–so simple that every attempt at applying such a test raises more questions than it answers, even if we arbitrarily decide that all jurisprudence must be conducted on utilitarian-consequentialist assumptions. Apparently, public debate about ISIS is not advanced by citizens’ having first-hand evidence of the nature and content of ISIS propaganda. The only permissible evidence is evidence filtered through people with “a track record of legitimate public commentary” on the subject–where “legitimacy” is presumably defined and decided by “like”-minded people with the same credentials.

Posner forgets that the legislators who are tasked with drafting his crackpot law will need access to the banned sites in order to know which sites to ban. But legislators are not on his exception list. Neither are their staffs. Neither for that matter are jurists, prosecutors, law enforcement officers, or juries. The whole idea that law involves an orderly, principled process  seems not to figure in his calculations.

How his law is to be written, enforced, or judged is therefore left a mystery. One possibility is that criminal defendants will be arrested or tried by journalists, academics, or bloggers. Another, I suppose, is that the relevant legal processes will take place by telepathy. A third possibility is that “we” dispense with legal procedures and trials altogether, criminalize access to any site that fits an “ISIS-relevant algorithm,” monitor Internet access at will, arrest anyone who accesses a banned site, and treat access to a banned site as a strict liability offense so as to simplify the process of conviction. It sounds like a reductio, but with a proposal like this, a reductio is just another entailment alongside all the others.

If you think I’m reading Posner uncharitably on the grounds that his weasel phrase “and the like” was intended to cover bloggers and law enforcement officers (legislators, judges, prosecutors, juries…), ask yourself how you would feel if someone demanded to search your home on the basis of his or her affiliation with a blog or online publication, be it BHL, Notes on Liberty, Talking Points Memo, Daily Nous, Slate, or even Policy of Truth. If you asked what the hell they were doing, it wouldn’t help for them to invoke their “likeness” to law enforcement officers. But then it won’t do to invoke the “likeness” of law enforcement officers (etc.) to bloggers while claiming that a reference to the latter ought implicitly to be construed as a reference to the former.

There is, by the way, no reason why academics or bloggers should be less susceptible to seduction by ISIS than anyone else, unless you stipulate in ad hoc fashion that the academics and bloggers who will have access are restricted precisely to those least susceptible to influence-by-ISIS. In that case, you’d probably want to restrict my access before you restricted most other people’s. If ISIS targets bored and angry people of vaguely Muslim sensibilities, beware of the vaguely Muslim academic who has spent time in Palestine, Pakistan, and Saudi Arabia; has suggested that Locke’s Second Treatise can be given a Hamas-friendly reading; and who still has piles of grading to do after everyone else at the university has left for break.

Many able commentators have knocked down this or that feature of Posner’s argument on moral, constitutional, legal, and logistical grounds. I would simply point out that the argument relies on metaphors that would need to be cashed out in literal terms for the argument to get off the ground. At a minimum, we would need some empirical evidence for the claim that ISIS websites have the causal powers of a virus, that the virus in question incapacitates otherwise non-culpable minds, and that in doing so, it drags these helpless innocents into sinister terrorist or terrorist-abetting actions they couldn’t otherwise have committed. I’m afraid I don’t really believe any of that, and don’t see any reason to believe it, either.

What I find more plausible is the hypothesis that terrorism and the wars supposedly waged on it have so weakened the critical powers of our commentariat that they fear, possibly with justification, that they lack the capacity to refute what ISIS has to say. Unable to refute the propaganda, and unable to conceive its appeal to those to whom it has appeal, they feel impotent to contribute to a war effort that they have, on the basis of little more than rhetorical self-mesmerization, turned into a categorical imperative for all of us. But they feel the pressing need to do something. So day by day they produce what they like to think of as novel proposals for eliminating this or that right in the futile hope that the fewer rights we have, the more security we’ll enjoy. As for the task of offering a justification for the war “we’re in,” or the hysteria, rights violations, or state-worship it seems to necessitate, don’t hold your breath for an answer, or even an attempt at one. They’re AWOL on all that.

Eight years ago, I wrote a very critical review of Richard Posner’s book, Not a Suicide Pact: The Constitution in a Time of National Emergency. Several years later, on re-reading the review, I almost wondered whether I’d been too rude or harsh about things. I ended it with this thought:

Posner is right to say that the Constitution is not a ‘suicide pact.’ I wonder, however, whether that phrase might not accurately describe the jurisprudence he defends in his book.

I thought long and hard before I committed those sentences to print. Was I being too snide? Too clever by half? Was I exaggerating?

Re-reading the review now, however, I’m really glad I wrote what I did, how I did. Virtually every move in Eric Posner’s article is one originally made in Richard Posner’s book; the son has simply recycled the father’s adhocrocratic prescriptions and given them a contemporary twist for the current mood.

It occurs to me with a bit of middle aged weariness that this particular malady–apocalyptic rhetoric about the unprecedented danger we face from terrorism, followed by a regrettably unavoidable proposal for more rights violations–is fated to pop up at semi-predictable intervals of our public life, like outbreaks of the measles virus or the re-emergence of the cicadas. I guess that fact implies in turn that some of us are fated to respond over and over again to such proposals in what often seems to others like a histrionic way, like a pedantic version of Nietzsche’s Zarathustra engaged in a finger-wagging version of the eternal recurrence.

Well so be it. It is, I’ll admit, boring to read or even write the nth sounding of the alarm over threats to free speech. I can testify from personal experience, however, that there is one thing more boring still–life under a regime of censorship. It’s a bore to sound the alarm, but it’s more boring not to be able to. A “simple balancing test” suggests which bore is preferable to the other.

Postscript, December 29, 2015: I found Eric Posner’s arguments so ridiculous that I almost wondered whether I over-reacted in writing about them at all. No sooner do I have this thought than along comes an article in The New York Times devoted not just to Posner’s Slate piece, but to variants on the theme expressed, among others, by Cass Sunstein and Jeremy Waldron.

Sunstein’s views are laid out in this short piece at Bloomberg View. The first thing to say is that it’s not on the same topic as Posner’s. Posner wanted to criminalize access to ISIS-glorifying websites, even by people who may have no sympathy for ISIS at all. Sunstein is (much more reasonably) discussing the limits on the endorsement of potentially violent activities by those endorsing it.

In particular, he questions the “clear and present danger” test, suggesting that it’s worth asking whether the test is “ripe for reconsideration.” He ends up with this formulation:

If (and only if) people are explicitly inciting violence, perhaps their speech doesn’t deserve protection when (and only when) it produces a genuine risk to public safety, whether imminent or not.

I don’t have a strong objection to that formulation, but it’s a long way from Posner’s view, and it’s also a long way from being clear enough to be susceptible of a response. What it needs and lacks is an account of what it is for a speech act to “produce a genuine risk to public safety”–a tall order.

A speech act can in some sense “produce a genuine risk to public safety” without inciting anything. If what I say fills a large number of people with rage, you might say (misleadingly) that my assertion that p “produced” the rage that (say) led to a riot, whether or not I incited it in the sense of explicitly calling for it. But from a different perspective, the speech act didn’t “produce” anything except speech. The crowd considered the sound and acted on it, and each individual in the crowd produced the riot. In one sense, then, “produce X” means “raise the probability that X will happen.” In another sense, “produce X” means “intentionally bring X about, or try to bring it about.” It’s not clear which one Sunstein means. If he means the latter, I can agree with him, but not if he means the former.

On the latter interpretation, the suggestion I would make would be to regulate incitement by analogy with assault and/or conspiracy. If I incite violence, my act should be legally actionable just in case it credibly calls for violence against some particular victim, the victim credibly fears a threat on the basis of this call, and the threatened act would violate the criminal code (=violate rights).  Celebrating a murder wouldn’t do it, even if you called in the midst of the celebration for more killing. Neither would this shit, vile as it is. (The correct way of handling something like the preceding would be for the guardians of the mosque to deny the speaker the right to speak in the it, i.e., to throw him out, not to arrest him.) I think it’s obvious that we don’t want to say that an Ayaan Hirsi Ali, Theo van Gogh, or Salman Rushdie et. al. should be held responsible for the overwrought reactions people have had to their work, even if the work in question is thought to “incite” (i.e., elicit) violence by its “inflammatory” or “incendiary” style.

In many cases, it seems to me that the dangers Sunstein mentions can be averted by assiduous enforcement of weapons laws, and also by demanding that political protest be regulated so that it’s confined to a specific place and time. If people want to gather in a park, with a permit that confines them to the park for a certain amount of time, and call for the overthrow of the U.S. government–or the mass slaughter of Jews, Muslims, or atheist philosophers–while they’re there during that time, that’s fine. But if they call for those things as they leave the park en masse with a view to enact the overthrow, that’s a different story. And a demonstration with weapons is another story as well. (It’s a tremendous irony that critics of Islam object to the face-concealing features of the hijab, but show up at armed protests against Muslims wearing masks.)

It’s also not clear from Sunstein’s account what counts as a genuine risk to public safety, or even what’s meant by “public safety” in a day and age when college students demands “safe spaces” from ordinary political speech. But that said, Sunstein’s view are light-years away from Posner’s.

Waldron’s views are more obviously objectionable than Sunstein’s (and apparently laid out in his 2012 book, The Harm in Hate Speech).

“I argued, in the adjacent area of hate speech, that the clear and present danger test is inadequate,” Mr. Waldron said in an interview. “You can poison the atmosphere without an immediate danger, but sometimes, waiting for an imminent danger is waiting too long.”

Well, you can “poison the atmosphere” simply by committing the fallacy of poisoning the well–or by committing almost any ad hominem fallacy. Would Waldron want to say that the commission of ad hominem fallacies should be illegal? I have trouble believing that the preceding quotation expresses Waldron’s considered view, but taking it at face value, as stated in the Times, I find it ridiculous. If “poisoning the atmosphere” were enough to trigger legal action, virtually the whole Republican presidential slate would have to be put under arrest, followed by whole college campuses.

I agree with Posner, Sunstein, and Waldron on one thing: legal thinking on incitement is a mess and could use some rethinking, though not I suspect in the direction they seem to want to take things.