I’ve thought for a long time that the sentiment “a defense of the right to say something shouldn’t include a criticism of saying it” to be philosophically, morally, and legally incoherent. Why they hell shouldn't I? I'm exercising my free speech. I'm saying what I think. I'm also clearly modeling the concept that you don't have to agree with speech to defend it. The norm that you should prissily refrain from calling an asshole an asshole when you explain why being an asshole is protected is inexplicable and even cowardly, in my view. It's also terrible strategy for convincing people of the virtues of free expression as social and legal policy. "Don't use official power to censor people who say awful things" is already a tough sell. "Also, don't be too critical when you point out the speech is protected" seems almost calculated to make new generations think that free speech is disingenuous bullshit.
I'm going to keep calling out situations -- like this one -- where very unpopular speech is also very clearly protected. There is no plausible excuse for the school's actions here. But I'm also going to keep saying what I think about the speech, to continue to model that supporting free speech doesn't mean giving up your own or abandoning moral and philosophical judgment.
And then there's this pure applesauce:
"Two exceptions were Popehat and Leiter Reports, which dared to defend the legality of his actions, but only with a big helping of moral condemnation to show that they don’t really approve of free speech that much and would like to apply social pressure to stop their fellow lefty from embarassing them."
This assessment of my character is more a confession of yours. I do "really" approve of free speech "that" much. I've devoted much of my career to it and a substantial part of my extracurricular pontificating to it. I just don't share the fatuous conceit that supporting someone's right to be an asshole requires me not to call them an asshole. Nonsense.
Defamation can get complicated, and is a matter of state law. I don't know Michigan law in particular and I haven't researched the caselaw anywhere on this point. The defamation case would be that the University said:
' "We feel this post far exceeds the bounds of reasonable or protected speech. It is, at best, morally reprehensible and, at worst, criminal," Wilson wrote.
"We have referred this to law enforcement agencies for further review and investigation. Pending their review, we have suspended the professor with pay, effective immediately," he continued.'
Is this false? Yes. The post does not exceed the bounds of protected speech. Whether it is morally reprehensible is matter of opinion, but whether it is criminal is not, and is false.
Did the statement, especially in conjunction with the suspension, hurt Professor Shaviro's reputation? Yes. The only question is how much.
Of particular interest is whether Shaviro is being accused of a crime. It seems he was. That generally means it falls into the category of defamation (per se, I think) where the victim does not have to prove objective damages. If that is so, then Shaviro does not have to provide evidence that his future employment was hurt and by how much, etc.
The "public figure" angle might come in here. This is a perniciously overextended doctrine that says it is legal to lie about someone if they are enough in the public eye, unless it can be proven that you knew you were lying at the time, which pretty much requires a confession. It is a crazy enough doctrine that maybe it applies; sometimes, I think, courts say that if you were defamed and get in the newspapers, you thereby become a public figure so it's OK to lie about you and ruin your career and your life. Maybe I exaggerate, maybe I don't.
Do tell me if I'm wrong. For a refresher on defamation law, see:
Thanks, professor, but defamation law is my practice area, so I really don’t need a generic LegalMatch post. Defamation can get complicated but this is not complicated. The statement is expressly prefaced with “We feel.” That, the language, and the rhetorical at best/at worst structure makes it extremely clearly an opinion based on disclosed facts, absolutely protected by the First Amendment, and not a provably false statement of fact. Though you’d have to be ignorant of First Amendment law to think that the professor’s statement was criminal, plenty of people are idiots, and an uninformed opinion that it’s critical is still an opinion.
Damages are irrelevant when you can’t show a provably false statement of fact.
The issue of combining criticism and support is interesting and important enough that I'll see if I can write a separate essay on it and link back to here.
Excellent work. I had to read it twice because I couldn't find a reference to "A Modest Proposal For preventing the Children of Poor People From being a Burthen to Their Parents or Country, and For making them Beneficial to the Publick." I suppose that allusion was too obvious. But you are playing the role of Thomas Becket nicely.
I’ve thought for a long time that the sentiment “a defense of the right to say something shouldn’t include a criticism of saying it” to be philosophically, morally, and legally incoherent. Why they hell shouldn't I? I'm exercising my free speech. I'm saying what I think. I'm also clearly modeling the concept that you don't have to agree with speech to defend it. The norm that you should prissily refrain from calling an asshole an asshole when you explain why being an asshole is protected is inexplicable and even cowardly, in my view. It's also terrible strategy for convincing people of the virtues of free expression as social and legal policy. "Don't use official power to censor people who say awful things" is already a tough sell. "Also, don't be too critical when you point out the speech is protected" seems almost calculated to make new generations think that free speech is disingenuous bullshit.
I'm going to keep calling out situations -- like this one -- where very unpopular speech is also very clearly protected. There is no plausible excuse for the school's actions here. But I'm also going to keep saying what I think about the speech, to continue to model that supporting free speech doesn't mean giving up your own or abandoning moral and philosophical judgment.
And then there's this pure applesauce:
"Two exceptions were Popehat and Leiter Reports, which dared to defend the legality of his actions, but only with a big helping of moral condemnation to show that they don’t really approve of free speech that much and would like to apply social pressure to stop their fellow lefty from embarassing them."
This assessment of my character is more a confession of yours. I do "really" approve of free speech "that" much. I've devoted much of my career to it and a substantial part of my extracurricular pontificating to it. I just don't share the fatuous conceit that supporting someone's right to be an asshole requires me not to call them an asshole. Nonsense.
Also, your conceit that the University President’s dumb and lawless statement is “defamatory” is unserious. Your feelings are not the law.
Defamation can get complicated, and is a matter of state law. I don't know Michigan law in particular and I haven't researched the caselaw anywhere on this point. The defamation case would be that the University said:
' "We feel this post far exceeds the bounds of reasonable or protected speech. It is, at best, morally reprehensible and, at worst, criminal," Wilson wrote.
"We have referred this to law enforcement agencies for further review and investigation. Pending their review, we have suspended the professor with pay, effective immediately," he continued.'
Is this false? Yes. The post does not exceed the bounds of protected speech. Whether it is morally reprehensible is matter of opinion, but whether it is criminal is not, and is false.
Did the statement, especially in conjunction with the suspension, hurt Professor Shaviro's reputation? Yes. The only question is how much.
Of particular interest is whether Shaviro is being accused of a crime. It seems he was. That generally means it falls into the category of defamation (per se, I think) where the victim does not have to prove objective damages. If that is so, then Shaviro does not have to provide evidence that his future employment was hurt and by how much, etc.
The "public figure" angle might come in here. This is a perniciously overextended doctrine that says it is legal to lie about someone if they are enough in the public eye, unless it can be proven that you knew you were lying at the time, which pretty much requires a confession. It is a crazy enough doctrine that maybe it applies; sometimes, I think, courts say that if you were defamed and get in the newspapers, you thereby become a public figure so it's OK to lie about you and ruin your career and your life. Maybe I exaggerate, maybe I don't.
Do tell me if I'm wrong. For a refresher on defamation law, see:
https://www.legalmatch.com/law-library/article/employment-related-defamation-of-character.html
Thanks, professor, but defamation law is my practice area, so I really don’t need a generic LegalMatch post. Defamation can get complicated but this is not complicated. The statement is expressly prefaced with “We feel.” That, the language, and the rhetorical at best/at worst structure makes it extremely clearly an opinion based on disclosed facts, absolutely protected by the First Amendment, and not a provably false statement of fact. Though you’d have to be ignorant of First Amendment law to think that the professor’s statement was criminal, plenty of people are idiots, and an uninformed opinion that it’s critical is still an opinion.
Damages are irrelevant when you can’t show a provably false statement of fact.
The issue of combining criticism and support is interesting and important enough that I'll see if I can write a separate essay on it and link back to here.
Excellent work. I had to read it twice because I couldn't find a reference to "A Modest Proposal For preventing the Children of Poor People From being a Burthen to Their Parents or Country, and For making them Beneficial to the Publick." I suppose that allusion was too obvious. But you are playing the role of Thomas Becket nicely.