Wednesday, April 26, 2017

Did Ann Coulter Really Want To Speak at Berkeley?

A few weeks ago, when Berkeley was slated to have back-to-back appearances by David Horowitz and Ann Coulter, I asked my students if they knew who either one of them was.

For Horowitz, the answer was a universal "no".

For Coulter, the mode answer was also "no", though one student offered that she was "like an older Tomi Lahren?"

My how the mighty have fallen. But of course, even long-since faded stars are entitled to attempt a comeback. So what better way to do so than through a high-profile act of martyrdom? Fortunately, despite their unknown status to the average Berkeley student, the Bay Area has an active "black bloc" community happy to oblige them. And so threats are made, and talks canceled, and somber reflections on illiberal universities published, and Horowitz and Coulter get to bask -- if briefly -- in the glow of being the bold truthsayers too raw for Berkeley snowflakes to handle. A return to the glory days, if you will.

But what if things didn't go according to that script?

Neither Ann Coulter, nor David Horowitz, were prohibited from speaking on campus. In both cases, they were offered a time and a place to speak at Berkeley; in both cases, it was they who declined that invitation. The statement from Chancellor Dirks -- who in my estimation has done a great job navigating very choppy waters on this issue -- provides a useful corrective to the prevailing media narrative and is worth reading in full. But an excerpt helps set the tone:
The strategies necessary to address these evolving threats [to free speech] are also evolving, but the simplistic view of some – that our police department can simply step in and stop violent confrontations whenever they occur – ignores reality.  Protecting public safety in these circumstances requires a multifaceted approach.  This approach must take into account the use of “time, place, and manner” guidelines, devised according to the specific threats presented.  Because threats or strategic concerns may differ, so must our approach.  In all cases, however, we only seek to ensure the successful staging of free speech rights; we make no effort to control or restrict the content of expression, regardless of differing political views. 
This is a University, not a battlefield. We must make every effort to hold events at a time and location that maximizes the chances that First Amendment rights can be successfully exercised and that community members can be protected. While our commitment to freedom of speech and expression remains absolute, we have an obligation to heed our police department’s assessment of how best to hold safe and successful events.
If UCPD believes there is a significant security threat attendant to a particular event, we cannot allow it to be held in a venue with a limited number of exits; in a hall that cannot be cordoned off; in an auditorium with floor to ceiling glass; in any space that does not meet basic safety criteria established by UCPD.  This is the sole reason we could not accommodate Ms. Coulter on April 27th, and the very reason we offered her alternative dates in early May and September, when venues that satisfy safety requirements are available.
Contrary to some press reports and circulating narratives, the UC Berkeley administration did not cancel the Coulter event and has never prohibited Ms. Coulter from coming on campus.  Instead, we received a request to provide a venue on one single day, chosen unilaterally by a student group without any prior consultation with campus administration or law enforcement.  After substantial evaluation and planning by our law enforcement professionals, we were forced to inform the group that, in light of specific and serious security threats that UCPD’s intelligence had identified, there was no campus venue available at a time on that date where the event could be held safely and without disruption.  We offered an alternative date for the event (which was rejected) and offered to work with the group to find dates in the future when the event could occur. Throughout this process our effort has been to support our students’ desire to hold their event safely and successfully. 
Now to be 100%, crystal clear: Violence or disruption, or threats thereof, to prevent Ann Coulter's speech is wrong and unjustifiable (and was unjustifiable when used against Milo). Ditto had Berkeley sought to cancel Coulter's speech outright (which again, it did not do). The people who engage in such violence are engaging in a wrong -- a serious wrong, a wrong that is antithetical to norms of free speech and free inquiry -- even when the subject is someone like Ann Coulter. One can believe that while simultaneously believing that Ann Coulter is a repulsive White supremacist who deserves naught but our scorn. And so the threats that Chancellor Dirks refers to are threats that cut to the heart of a free academic community. They should be investigated, and they should be dealt with.

But UC-Berkeley did not make those threats. UC-Berkeley did not engage in that censorship. And the way Berkeley, as an institution, treated Coulter seems eminently reasonable. Clearly, Berkeley has an interest in ensuring the event goes off safely. Clearly, and as an institution committed to free speech, it has an interest in creating conditions where her speech occurs without incident, obstruction, or unlawful disruption. Clearly, it can impose reasonable time, place, and manner restrictions to try to limit the damage and obstruction that might be caused by those persons making unjustified threats and promising unlawful riots. Surely this is them taking the responsible course of action, yes?

Placing Ann Coulter "in a venue with a limited number of exits; in a hall that cannot be cordoned off; in an auditorium with floor to ceiling glass" is a recipe for free speech disaster (not to mention the budgetary disaster for Berkeley when the -- quite literal -- damage has been done). And while there are limits to what sorts of venue-restrictions one could impose without violating free speech -- obviously they couldn't stick her in a broom closet and "allow" the speech to proceed freely -- that's not what happened here. Berkeley made a reasonable effort to reasonably accommodate Coulter's speech while reasonably insisting that the speech occur in a time, place, and manner that didn't cause chaos. That's entirely consistent with our free speech tradition. That's Berkeley behaving responsibly in the face of community members who were threatening to behave irresponsibly, even criminally. That's Berkeley seeking to facilitate, not censor, Coulter's speech.

So why is it being interpreted otherwise? The argument seems to be that when Berkeley institutes any sort of specific procedures or guidelines to facilitate the free speech of controversial speakers likely to face illegitimate obstruction, it's "giving in" to threats -- or worse, tacitly endorsing them. To quote my old college buddy Jim Kiner: "This is America. Someone giving a speech shouldn't have to worry about the size of the windows." (Of course, it's not Coulter who has to worry about the windows -- they aren't hers to worry about. Ann Coulter can be blissfully indifferent regarding their fate. It's Berkeley -- the property-owner -- who's concerned, and it seems clearly reasonable for them to take limited steps to ensure that their property isn't destroyed in the wake of their indifferent houseguest's visit).

Can we say that, in a good world, Berkeley wouldn't need to have these procedures for managing threats to outside speakers because everyone would respect everyone else's right to speak unmolested? Yes (though in such a good world nobody would be inviting repulsive trolls like Coulter to speak in the first place). But the Berkeley-blame for all this is strange, bordering on bizarre. In a good world nobody would try to hijack an airplane. Sadly, we don't live in that world, and so the TSA has certain procedures designed to manage the threat of terrorist hijackings while allowing us to travel freely -- procedures we only need because some people behave unlawfully, wrongfully, terroristically. Those procedures can be debated as too lenient or too harsh, but I've yet to hear anyone say that by having them the TSA was tacitly endorsing or normalizing terrorism. Responding to the reality of an unjustified threat is not the same thing as justifying or legitimizing that threat. Berkeley has to live in the world that exists, not the world of its dreams, and when it does so it doesn't endorse our fallen state. Rioters are wrong for rioting, but Berkeley is not wrong for taking reasonable steps to account for living in a world where rioting happens.

Which brings us back to the question in the title: Did Ann Coulter really want to speak at Berkeley? Does she really want Berkeley to succeed in creating a space for her to speak without obstruction, disruption, or incident? I'm dubious. She came to Berkeley because she wanted to be a martyr -- either canceled outright or censorially disrupted. For Berkeley to succeed in offering her a space where none of that would happen thwarts her goals. After all, accepting Berkeley's terms would mean that her speech would likely not be shut down, or disrupted, or even been particularly noteworthy. It would have to attract attention solely by the merits of her ideas. No wonder she found it unacceptable.

This, in fact, is what happened with Horowitz. He too was offered a different venue -- one which promised that his speech would be able to occur freely, without incident or disruption, and receiving only so much attention as was warranted by his fame, merit, and talent. And once that became the deal, his booking agent decided (I know this from first-hand sources) that the new offer to speak -- one which was unlikely to spark massive protests or demonstrations, but would simply allow his talk to occur in peace -- was unworthy of his time. What's the point of coming to Berkeley if you're not going to get run out of town?

And so here were see the horns of the dilemma Berkeley finds itself in. On the one hand, it is facing a community (often not primarily comprised of students) which behaves in ways which are censorial and intolerable towards particular viewpoints (that these viewpoints are fairly characterized as racist ones does not justify said censorship). And so it takes steps to counteract these violent tendencies and ensure that its doors nonetheless remain open to speakers of all sorts, even the most repulsive ones, without incident. But then it discovers that actually, many of these speakers desire nothing more than to be "censored", to be "shut down", to be the proof of the intolerant liberal campus and the censorial lefties who can't handle their ideas. The worst thing that could happen to them is a Berkeley which successfully manages to enable their speech without incident. The whole point is for there to be an "incident". The whole point is to become a martyr.

And so if they're not "censored," they'll just drop out and say they were anyway. And their gullible followers will eat it up.

Tuesday, April 25, 2017

Radical Feminism Takes Over Zionist Sharia!!!!!!

In a story that has something in it for everyone, the Israeli government just appointed the first Muslim woman, Hana Khatib, to one of its official Sharia law courts. Yes, that's right: Israel has Sharia law courts. And, as it happens, Jewish women still are prohibited from serving on Israel's official Jewish Rabbinical courts, so this is an area where Israeli Muslim women are actually more equal than their Jewish counterparts.

Female judges on official Muslim courts are rare worldwide, but not unheard of. According to the Arab News, for example, the Palestinian Authority has two women on its religious judiciary roster.

In any event, congratulations to Ms. Khatib, and condolences to the various medical professionals worldwide who are no doubt dealing with misogynists, anti-Zionists, and Islamophobes simultaneously having their heads explode.

Monday, April 24, 2017

The Bank Robber Turned Georgetown Law Prof is a Bad Example of White Privilege

Shon Hopwood robbed a bank, and served 11 years in prison. While incarcerated, he studied in the prison law library and -- incredibly -- authored two cert petitions that were ultimately granted by the Supreme Court. This caught the attention of former Solicitor General Seth Waxman, who collaborated with Hopwood once the first of these cases was accepted for argument. Upon release from prison in 2009, Hopwood attended the University of Washington Law School and later clerked on the prestigious United States Court of Appeals for  the D.C. Circuit.

His story is already familiar to many lawyers -- his sentencing judge, Judge Richard Kopf of the District of Nebraska, publicly ate crow after admitting that he thought Hopwood was a low-life who'd never make anything of himself -- and for my part I distinctly recall read his clerkship application when I worked for Judge Diana E. Murphy on the United States Court of Appeals for the Eighth Circuit. His was a remarkable tale, the sort of once-in-a-lifetime story one doesn't soon forget.

Now Hopwood is back in the news after he was hired to teach at Georgetown Law School. And a few people, including my good friend Joel Sati, have reacted by labeling his case one of "white privilege". I checked in with another friend and official privilege expert/skeptic Phoebe Maltz Bovy, and she was okay with the usage in this case. But -- despite generally being more comfortable with "privilege" discourse than Bovy -- I found it's deployment here to be off-base, and I thought I might explain why.

The obvious angle of attack, of course, would be to say that to talk of "white privilege" in Hopwood's case obscures his incredible accomplishments, talent, hard work, and so on. The retort to this would be that "privilege"-speak actually denies none of these things, but rather is the observation that a similarly-situated Black man would never be given the same opportunity Hopwood had for redemption. And so the crux of my hesitation is that I'm actually not convinced that this is true. I actually think academia would respond quite positively to a Black man whom, while in prison for bank robbery, authored two cert petitions that were ultimately accepted by the Supreme Court. That's an incredible (in the literal sense -- it defies credibility) accomplishment, and one that I think would be difficult to overlook no matter the race of the inmate. Of course, it is so incredible because it is breathtakingly rare -- there almost certainly isn't another inmate of any race who has managed to walk that particular path, and so the counterfactual remains wholly hypothetical.


Let's say I'm right, and our hypothetical black male inmate did author two successful cert petitions and then was upon his release accepted into law school, allowed to take the bar, hired for a prestigious clerkship, and ultimately employed as an elite law professor. And suppose someone pointed to that man and said "Aha! There's no 'racism' in our prison system! Look at [Black Shon Hopwood]: He worked hard and made something of himself, and see how successful he is now. Instead of complaining so much about 'racism', why don't people try following his example?"

Such an argument would not be remotely compelling. Why not? Because the fact that a truly extraordinary individual can transcend the barriers of the incarceration system tells us virtually nothing about how that system operates on average men and women. To say to a regular prison serving out a prison term "your destiny is in your hands now: all you have to do is teach yourself law while incarcerated and become so proficient at it that you can write two briefs that will be accepted for hearing by the Supreme Court, and you can successfully reenter society" is a ridiculous joke. It is the beyond-parody version of thinking of civil rights in terms of the "talented tenth" (or tenth of a tenth of a tenth) instead of the "normal ninethieth." We would, in the case of "Black Shon Hopwood", rightly reject the notion that his story tells us anything useful about racial inequality or injustice as it pertains to persons convicted of crimes generally. But the argument that Black Shon Hopwood is abnormal and aberrational is inconsistent with the argument that White Shon Hopwood is illustrative and representative. The latter argument is alluring because such cases stick in the public eye. But the former argument is the right one.

In The New Jim Crow, Michelle Alexander speaks of the propensity to take the life stories of exceptional Black men and women -- the Barack Obamas and Oprah Winfreys -- and use them as baselines for the typical Black experience. These are not typical stories, and so they have little to tell us about what equality or fair opportunity means for the typical Black man or woman. The problem with our prison system, or our educational system, or our political system, is not that it makes it impossible for the ludicrously talented to succeed. As Bella Abzug famously put it, "Our struggle today is not to have a female Einstein get appointed as an assistant professor; it is for a woman schlemiel to get as quickly promoted as a male schlemiel." So too, we might say, the struggle for racial justice for the incarcerated is not to get a Black Shon Hopwood hired as a paralegal. It's to ensure that the typical Black inmate has the same opportunities on release as the typical White inmate* -- neither of whom is likely to resemble Shon Hopwood in any meaningful respect.

That White privilege interacts with our prison system is undeniable. And in particular, it is clear that White ex-felons have a far better chance of being hired or given other opportunities than the Black colleagues upon release (indeed, the former's chance is equivalent to that of a Black man with no criminal record at all). That's White privilege not in an exceptional case, but in an appallingly ordinary form -- not tied to an extraordinary, nearly sui generis case like Hopwood, but as applied to regular people who are not going and should not be expected to write multiple successful Supreme Court cert petitions. Focusing on Hopwood's case is not just wrong analytically, it perpetuates the destructive frame whereby we focus anti-racism discourse on exceptional cases and then blame everyday people for not living up to near-unattainable ideal.

Most people -- Black or White -- aren't exceptional. They're normal. And for anti-racist politics to help them, it must break the habit of relying on the high-profile and high-octane cases to establish the circumstances faced by the normal, the unremarkable, the banal, and the everyday.

* And that both have opportunities that substantively offer them a real chance to integrate back into society as equal members.

Sunday, April 23, 2017

I'd Do Anything for France, But I Won't Do That

The first round of the 2017 French presidential elections has concluded, and center-to-center-left Emmanuel Macron (23.8%) will face far-right firebrand Marine Le Pen (21.7%) in the runoff. Center-right candidate Francois Fillon came in third with 20%, while Communist-backed lefitst Jean-Luc Melenchon placed fourth at 19.4%. Benoit Hamon of the incumbent Socialist Party came in a distant fifth with 6.3%.

Le Pen's National Front Party has roots that are fairly described as fascist, and she is a fierce opponent of the EU. Unsurprisingly, Donald Trump and Vladimir Putin both are fans of Le Pen. And with Macron advancing to the run-off, he quickly earned the endorsements of erstwhile opponents Fillon and Hamon, as well from the French and Belgian Prime Ministers and German Chancellor Angela Merkel.

As for Melenchon: he won't endorse anyone in round two. Like Corbynistas in the UK, for all its "by any means necessary" pretensions the French far-left actually isn't willing to do what it takes to stop the far-right from winning. It turns out that it's one thing to oppose fascism by calling for the radical overthrow of the capitalist state and the seizure of the means of production, and it's quite another to do something truly radical like ... vote for a more centrist candidate.

The fact that Melenchon basically has the same view as Le Pen when it comes to the EU (compared to the definitively pro-EU Macron) probably isn't helping matters either -- and the far-left/far-right convergence around Euro-skepticism also buttresses the Corbyn comparison.

Fortunately, polls have Macron smashing Le Pen in a head-to-head race. But still, we've been deceived by polls before. And the decision by Melenchon to, in effect, join Trump and Putin in propping up Le Pen is recklessly irresponsible and deserves nothing but our scorn.