The Volokh Conspiracy

There's a RealPlayer recording of a debate on this subject, between Richard Epstein and Eben Moglen, here, and a post here. The debate was sponsored by the Columbia Law School Federalist Society.

Rutgers-Camden Law School and the Constitution Center are organizing a very interesting sounding conference on this subject. It's inspired by University of Chicago Law Professor Geoffrey Stone's recently published book, Perilous Times: Free Speech in Wartime (Norton, 2004), and it will include many noted experts, including Federal Third Circuit Judge Michael Chertoff and First Amendment lawyer Floyd Abrams. Details are here; admission is free, though you must register.

My colleague Neil Netanel reports that the Supreme Court has agreed to hear the Grokster case, and will thus again consider when the distributors of a product can be held liable on the ground that the predominant uses of the product are copyright infringement. (The last time the court considered this was in Sony v. Universal, the VCR case.)

UPDATE: Tim Wu predicted it. Also, here's a post of mine on the Ninth Circuit decision that the Court will now be reviewing.

Democracy Project writes:

Before last spring, Miller planned on retiring to his home town of Young Harris to teach at the eponymous junior college there. He's a YHC graduate and former professor at the small Methodist school, which was founded in 1886 by a circuit-riding minister. But in May, David Franklin, a history professor there whose wife is academic dean, penned a vitriolic letter to Miller that was obtained by the Atlanta Journal-Constitution. In the letter, Franklin, from whom I took a Western history survey course during his first year there, 1979/80, said:

"You, Zell Miller, are a disgrace to your city, your county, your state and your country. Your attack upon the U.S. Senate that you sit in now was so unpatriotic it boggles the imagination."

In response, Miller declared that he wouldn't teach at the College, as the letter "makes it abundantly clear that I would not be, shall we say, warmly welcomed." And: "I have long put up with this kind of vitriol in the political world but I am not going to at my alma mater." . . .

[S]o politicized has higher education become that even the smallest academic communities now employ teachers who're only too happy to lash out at a native son who professes traditional conservative beliefs -- even if he also happens to be the school's most distinguished alumnus. . . .

Can there be any doubt that, had Miller spoken out against the Bush administration, his place in academe would have been assured? After all, Max Cleland, Georgia's embittered ex-Senator, found his liberal credentials far more useful in landing an academic post than in maintaining his Senate seat in a Red State. Viewed from that perspective, Miller's ostracism from his alma mater is a badge of honor. But for Young Harris College, it remains a shameful stain.

InstaPundit points to this, writing "Zell Miller is joining a law firm, because apparently his alma mater, where he had been scheduled to teach post-retirement, decided it didn't want him."

Now there might be more to the story than what Democracy Project wrote, but so far it seems like one professor harshly criticizing the Senator. In fact, it's one professor exercising his academic freedom in harshly criticizing the Senator.

I think the professor was wrong to do so (both in tone and on the substance), but absent some more evidence, it's hard to see how his speech could be imputed to the college as a "shameful stain" on the institution. Nor can I see how "academic communities" could properly make sure that they don't "employ teachers who're only too happy to lash out at a native son who professes traditional conservative beliefs." And while it's too bad that some faculty members are rude, neither do I think it profitable for colleges to try to completely exclude all people who might occasionally be uncollegial.

The flip side of college professors' freedom to speak is that the college doesn't endorse their speech (even if their spouses are administration members). It's true that the college might have taken steps to express its affection for Miller, and distance itself from Franklin's statements, but for all I know it might have. Certainly nothing in the story suggests that the college endorsed them, or that many other colleagues expressed similar sentiments.

So it's hard to see how this is evidence that Miller's place at the College was anything but "assured." (Universal affection for him, or even collegial politeness, wasn't assured, but that's outside the power of the College to assure.) He doesn't seem to have been "ostraci[zed]." Nor does there seem to be evidence that the College "didn't want him."

I think there's plenty of undue hostility towards conservatives in academia, and plenty of vitriol that ought to be condemned. But I'd hate to see people hold colleges responsible for isolated faculty members' speech, speech that the colleges ought to tolerate even when they disagree with it.

The most interesting claims about word origin are often wrong. Jesse Sheidlower, editor-at-large of the Oxford English Dictionary seems to have the goods on one, in Slate:

John Leland kicks off his entertaining new book, Hip: The History, with a seductive little linguistic anecdote. The word hip, he says, derives from the West African language Wolof, and was "cultivated by slaves" from West Africa. Leland goes on to use the etymology of the word as a framing device for part of his argument: Hip — the word and the concept — "was one of the tools Africans developed to negotiate an alien landscape, and one of the legacies they contributed to it." Sounds fascinating, right?

There's just one problem: The etymology is wrong. . . .

A particular telling quote: While Leland consulted various sources (which turned out to all flow from the same wrong initial source, or so says Sheidlower), "Leland also wrote to me, 'Of all the proposed etymologies I saw, the case for slave origins struck me as the strongest, earliest and most edifying.'" Whether a linguistic claim is repeated often turns largely on whether it is "edifying" or amusing or otherwise gratifying, and not enough on whether it's accurate.

RatherBiased.com reports that

The owner of Nonviolence.org, Martin Kelley, said . . . 'Yesterday I got a call from a publicist for CBS News's 60 Minutes. They're running a story tonight on 'Deserters,' U.S. military personnel who have fled to Canada rather than serve in Iraq. She was requesting that I talk up the program on Nonviolence. In nine years of publishing the peace site, I can't remember ever getting a call from a publicist before. I've talked to reporters from major news networks and papers, and I've talked a booking agent or two to arranging appearances on radio shows, but never a publicist.

InstaPundit also links to this.

My first reaction: Sound slimy that a news outlet is trying to get people on one side of the aisle to talk up its news story. My second reaction: Why should this be slimy? They're trying to get more people to watch their story — which they presumably think is valuable and accurate — and of course they're e-mailing those people who seem inclined to promote it favorably rather than those who seem less inclined to promote it or more inclined to criticize. (Of course, it's possible they also tried to approach some conservative bloggers, too.)

My third reaction: It's pretty cool that some mainstream media publicists think enough of blogs that they want to promote their tens-of-millions-of-viewers broadcasts there. My fourth reaction: Three reactions are enough.

In the spirit of Orin's recent successful experiment with comments, I'll turn on comments for this thread. No, it's not something I'm likely to do more often. [But you just said that you're doing this because it has just been done. Doesn't that mean that once it's been done twice, you're likely to do it again.-ed. Nah, slippery slopes are just a myth, long debunked by serious scholars.] Nor do I promise to read all of them in a timely fashion, or edit them to remove trolls, spam, repetitions, folly, etc. I'm trusting in everyone's forbearance and politeness here, always a winning strategy in this, the best of all possible worlds.

Jonah Goldberg (National Review Online) weighs in. Sounds like he and I largely agree.

"I always jest to people, the Oval Office is the kind of place where people stand outside, they're getting ready to come in and tell me what for, and they walk in and get overwhelmed by the atmosphere. And they say 'man, you're looking pretty.'" —Washington, D.C., Nov. 4, 2004"

QUESTION: (OFF-MIKE)

BUSH: Learn and not learn about the Cabinet?

QUESTION: (OFF-MIKE)

BUSH: . . .

This is a job that requires crisp decision-making, and therefore, in order for me to make decisions, I've got to have people who bring, you know, their point of view into the Oval Office and are willing to say it.

I always jest to people: The Oval Office is the kind of place where people stand outside, they're getting ready to come in and tell me what-for, and they walk in and get overwhelmed by the atmosphere and they say, Man, you're looking pretty.

Therefore, you need people to walk in on those days when you're not looking so good and saying, You're not looking so good, Mr. President. . . .

What exactly is there that's remotely mockable about this? I report, you decide.

Incidentally, people occasionally fault my criticisms of the Bushisms. "They're just a joke," they say. Well, they are attempts at humor — but they are attempts at humor that criticizes Bush. (See the Introduction to the Bushisms book, excerpted here.) If you're going to criticize someone, it seems to me that you should do it fairly and aptly. Many of the Bushisms strike me as unfair and inapt, which is why I comment on them.

Finally, someone suggested that this is petty nitpicking on my part, and that I should move on to more important things. I offer a deal: If Slate stops its petty nitpicking of Bush — and nitpicking which strikes me as often incorrect — I'll stop my petty nitpicking of Slate.

The Borowitz Report has the scoop.

Dahlia Lithwick (Slate) has a funny, readable, and interesting report of the oral argument.

if you just focus on the right denominator. My former student Kevan Choset points to this AP item, on the MSNBC site:

Although "Titanic" soared at the box office in 1997, according to a recent survey, it's most memorable line -- "I'm the king of the world!" -- sunk..

British baker Warburtons posed the question "What are your top three cheesiest moments in film?" to 2,000 U.K. moviegoers in celebration of the launch of their new cheese flavored crumpets. . . .

Warburtons reports that surveyed women opted for romantic comedy moments from films such as "Notting Hill" and "Jerry Maguire" while men preferred silly scenes from action flicks like "Top Gun" and "Braveheart." Despite the gender divide, 33 percent of the overall vote unanimously agreed on the "Titanic" yell as the cheesiest moment.

CNN did better; I take it they noticed the error.

I e-mailed Jacob Weisberg to ask what he thought was Bushist about yesterday's Bushism of the Day, and he graciously responded:

The White House transcript didn't have "to." Hard to know what he actually said, but I'll switch to the Post version to make it more readable. In any case, that is not the joke. I define Bushisms as things Bush says that are funny for whatever reason, not merely mistakes.

Hmm -- that's not how I had understood the series. Here's the start of the Introduction from Weisberg's Bushisms book:

The question I am most frequently asked about the Bushisms series is, "Do you really think the President of the United States is dumb?"

The short answer is yes.

The long answer is yes and no.

Dipping into this volume may leave the impression that George W. Bush is a simple dimwit. . . . If you don't care to pursue the matter any further, that view will serve. . . .

In reality, however, there's more to it. The assemblage of a presidential term's worth of malapropisms, solecisms, gaffes, spoonerisms, and truisms -- drawn together here from the best of Bushisms old and new -- tends to imply that Bush's lack of fluency in English is tantamount to an absence of intelligence. But as we all know from experience, the inarticulate can be shrewd, the fluent fatuous. In Bush's case, the symptoms indicate a specific malady -- some kind of language-skill deficit akin to dyslexia -- that does not indicate a lack of mental capacity per se. . . .

But perhaps the Bushisms column has a broader mandate than the Bushisms book, or both are meant to be a mix not just of "malapropisms, solecisms, gaffes, spoonerisms, and truisms" -- which are either mistakes (the first four) or vacuousness, which one might think of as a substantive mistake -- but also just things that are "funny for whatever reason."

Still, isn't this line funny largely because it is taken out of context? Would it really be that funny if read with the surrounding lines, as I quote them above, and understanding that it was a response to a question about beef import policy?

And in any event, might it not be better for the Bushisms column to include links to the transcripts, so that readers can see for themselves what the context might be (especially if they assume that most Bushisms are indeed "malapropisms, solecisms, gaffes, spoonerisms, and truisms" rather than just "funny for whatever reason")?

A very interesting exchange, between columnist Paul McMasters (of the First Amendment Center) and U Chicago lawprof and First Amendment maven Geoffrey Stone.

In today's Slate:

"I believe that, as quickly as possible, young cows ought to be allowed go across our border." — Ottawa, Nov. 30, 2004

Now this one just puzzles me. Here's the relevant excerpt from the transcript. Bush was apparently responding to a question about the importation of beef from Canada to the U.S. (I can't quote the question, because it isn't included in the transcript, presumably because it's in French):

Look, the prime minister has expressed a great deal of frustration that the issue hadn't been resolved yet. And I can understand his level of frustration. There's a series of regulations that are required by U.S. law, and the latest step has been that the Agriculture Department sent over some proposed regulations to handle this issue to what's called the Office of Management and Budget. It's a part of my office.

I have sent word over that they need to expedite that request as quickly as possible.

I fully understand the cattle business. I understand the pressures placed upon Canadian ranchers. I believe that, as quickly as possible, young cows ought to be allowed to go across our border. I understand the integrated nature of the cattle business, and I hope we can get this issue solved as quickly as possible. . . .

What's "Bushist" about this? Is it that "young cows" sounds odd? Apparently it's a common industry term (see, e.g., "Management of Young Cows for Maximum Reproductive Performance," noted on a USDA site). Is it that it sounds stilted to talk about allowing the cows to go over the border, as if it's the cows' desire? But this is a pretty standard locution — speaking of goods going places, rather than people shipping goods places — and in context I doubt that it sounded at all odd.

Or is it the omission of the "to" before the "go across the border"? The Washington Post transcript quotes Bush as saying "to go across the border," as do the other sources I've checked. [UPDATE: Reader Russell Steinthal points out that Slate has since inserted the "to," though it was omitted when the item originally went up.]

And why does Slate, an online publication that has long tried hard to take advantage of its online format, persist in failing to providing links to sources that it quotes? Wouldn't it be good if readers could see for themselves how the quote looks in context?

[NOTE: I added the "Or is it" paragraph after this post was originally posted.]

Marty Lederman (SCOTUSblog) blogs about it.