Mirror of Justice

Some Memories of Kent Greenawalt

Professor Kent Greenawalt, longtime faculty member at Columbia Law School and eminent scholar in many areas--criminal law, jurisprudence, constitutional theory, free speech, and, of course, law and religion--has died. Many of us at Mirror of Justice knew him and his work well. Others will and should reflect on his greatly distinguished career, one combining service at high levels of government, projects of legal reform (particularly in criminal law), and great scholarly achievement in law and letters. I wanted to offer here some of my memories about Kent in my own life.

For me, Kent was a mentor and friend since I got to know him in the summer of 2006. In those days, he was the first and best advisor I had concerning subjects that I had just begun to study and learn about, someone who immediately invited me into his life when many others would not. He was reserved, gentle, patient, kind, but also deeply penetrating and critical (often of my work, and in the best ways) as we discussed ideas, projects, and papers together. I used to joke with him that my study at Columbia ought really to go by a separate degree name, Greenawalt Studies. That proved largely right. Some of the best teachers are the best because they make their students want to know about the teacher and their work--to learn through the mediating structure of the teacher. So it was for me with Kent. His interests became my interests, and I learned about criminal law and constitutional law through the medium of his articles, books, and our many conversations. I also learned and took from Kent a commitment to breadth and to writing in a variety of disciplines as inclination dictated.

One of Kent's signature course offerings was a seminar, whether in legal interpretation or the religion clauses or something else, at his home. He would provide tea, coffee, and crumpets of various kinds (usually huge, powdered donuts), and we all would sit around his living room overlooking the Hudson River, hunched over various easy chairs, couches, rugs, and the like, and talk together. It was an experience akin to what 16th century Italian salon exchanges must once have been like. I am not the first to observe that among his many gifts, Kent's particular excellence as a teacher was the capacity to listen exceptionally closely and deeply to what was being said. I think that one of the benefits of this virtue was the consequent capacity to slice the ideas being expressed into finer and finer shavings, so that each fragment could be examined and thought about on its own. In reflecting back on this way of thinking and teaching, it has occurred to me that it was particularly effective not only for understanding difficult ideas, but also for achieving mutual understanding and perhaps even partial agreement where there was initially only total disagreement--and even hostility. Kent reflected the virtues of keen listening in his scholarship and his scholarly exchanges as well. But I should add that it was also a different time in scholarship about subjects like the religion clauses than it now is, and I have wondered whether this method can work, or can work in the same way, today. 

As for his scholarly achievements, as I mentioned, I will leave that for others to reflect upon, with this one exception. It was an important part of Kent's intellectual contribution, developed over his scholarly life and across several disciplines, that law is best understood in a kind of ongoing inductive process–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions, revolving, deepening, and developing in a kind of concentric upward spiral that penetrated through to the truth, about how the law works itself out in the real world. "From the bottom up," as the title of one of his books of essays puts it.

It was a humane, cultivated, fair-minded, decent, deeply civilized method of scholarly inquiry befitting a man of the same high qualities. I was always struck by this approach to scholarly inquiry, perhaps even to life, attempting in various poor ways to model its virtues as I could, but never as the master did. It’s a method of writing and public engagement that I’ve been delighted to see in other humane and highly literate scholars and friends—in Paul Horwitz’s thought, for example (Paul, also a student of Kent’s, offers his remembrances here some of which are similar to mine but some of which are different), and Steve Smith’s work as well, different as these scholars are from one another and, in turn, from Kent.

In later years, after I became an academic, it was a great joy for me to have Kent speak at the Law and Religion Colloquium that I regularly co-teach with Mark Movsesian (on that occasion, actually, the Colloquium was co-hosted and co-taught with Michael Moreland and his students at Villanova). Kent continued to show our students what a true scholar all'antica was like, passing on his example of that elegant and worthy tradition to them. I knew that he had fallen ill in more recent years and regretted that we had not seen one another as often as I would have liked. I will miss him.

May he rest in peace.

Waldstein on "The Liberty of the Church"

Edmund Waldstein, O. Cist., has a piece at Church Life Journal called "The Liberty of the Church." (If you are not a regular reader/subscriber to the Journal, stop reading, go sign up, and then come back.) This is a topic that has been of interest to me for a while.

I suppose it's not news to Mirror of Justice readers that some church-state matters appear differently to me than they do to Pater Waldstein. He writes, in the piece, that "[b]rought to its ultimate conclusion, the demand for libertas ecclesiae is the demand for the stance known as 'integralism.'" In my view, it is not, for (inter alia) reasons set out in Dignitatis humanae.  As a friend put it to me in correspondence, "the issue is not whether the [Roman Catholic] Church is the true church. It is. The issue is the limited competence of pastors (of the true church) and the corresponding autonomy of temporal affairs."

In any event, check it out . . . 

"Public-Private Drift"

Here's a new paper of mine, Public-Private Drift, examining the growing proclivity to blend public law and private law in order to mold behavior and coerce it into certain ideological grooves. The paper explores the phenomenon in a variety of contexts today. Here is the abstract:

The public law/private law divide is back. Scholars with a broad range of theoretical commitments are attempting to rediscover or reestablish the division. This paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks.

This paper’s perspective on the public-private debate is explanatory. It accepts that many people perceive or believe American law to be in some sense divided into public and private domains, without endorsing that perception or belief. It does so in order better to describe the coming of drift. Even if one were skeptical about the conceptual purity of public and private law, one might nevertheless believe that what is public and private is a question of more and less, of greater and lesser degrees, and that there can be periods of relative stability in these categories and relative disruption. The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift.

The upshot is that drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves. Drift is, in sum, a reaction to social fragmentation that ironically and unhappily exacerbates the pathologies that provoke it in the first place.

Syllabus for my Course on Freedom of Speech and Freedom of Inquiry

Still a work in progress, but this is the rough plan for a new seminar I'm teaching this spring at Princeton on the subject, as part of the Initiative on Freedom of Thought, Inquiry, and Expression of the James Madison Program in American Ideals and Institutions.

One focus for the course concerns the connection between free inquiry and knowledge--what knowledge's value is, how it is gained, and how it is produced. More broadly, I'd like to explore in this course the goods that freedom of speech and inquiry are for, to borrow a line from John Garvey.

Suggestions most welcome. 

PRINCETON UNIVERSITY

Department of Politics

 POL 494: Freedom of Speech and Freedom of Inquiry

 

Instructor. Marc O. DeGirolami

Description. American law vigorously protects free speech. Free speech lies at the core of our politics and culture. But many argue for greater government regulation of speech, particularly for “hate speech” and other speech deemed “offensive.” Social media and speech at universities present additional challenges, some of which have involved Princeton itself. And what about “cancel culture” and other social controls on speech? Are these healthy limits or stifling constraints? This course explores the historic and philosophical justifications for protecting speech, focusing on the freedom of inquiry—the freedom to ask questions in pursuit of knowledge and truth. It also introduces students to the constitutional law of free speech. It asks students to think about speech’s value in historical perspective and today.

The course is sponsored by the James Madison Program’s Initiative on Freedom of Thought, Inquiry, and Expression, and by a grant from the Stanton Foundation.

Freedom of Thought, Expression, and Discussion. As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Readings. All readings are posted to the Canvas page with the following exceptions. Please purchase a copy of the following:

• John Stuart Mill, On Liberty (Dover Thrift Edition 2002)
• Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018)

Grading. The grading breakdown for the course is as follows: mid-term paper 30%; final paper 50%; class participation 20%.

Late Penalty. Due dates are strictly enforced. Papers received with a time stamp after 5 pm but before midnight on the date on which they are due will be penalized a half letter grade. Papers will be penalized another half letter grade if they are received by 5 pm the subsequent day and another half letter grade the day after that.

SCHEDULE OF COURSE MEETINGS AND ASSIGNMENTS

Assignments are tentative and subject to revision as the course proceeds

Week 1, Thursday, February 2: Introduction to the Course, the Constitution of the United States, and the First Amendment Freedoms

Syllabus

U.S. Constitution (all)

Geoffrey Stone, “The Story of the Sedition Act of 1798: ‘The Reign of Witches,’” in First Amendment Stories (Garnett & Koppelman, eds. 2012)

Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal (2017) (Introduction, Part II, Part III, Part IV)

 

THEORY

Week 2, Thursday, February 9: English Antecedents and American Foundations

Thomas Hobbes, Leviathan, Part II, Chapter XXIX (“Of those things that weaken or tend to the dissolution of a Commonwealth”) (1651)

John Locke, Letter Concerning Toleration (1689)

James Madison,

Federalist 10 (1787)

Federalist 51 (1788)

Report on the Virginia Resolutions (1799-1800)

Judith N. Shklar, “The Liberalism of Fear,” in Judith Shklar, Political Thought and Political Thinkers (Hoffman, ed. 1998)

 

Week 3, Thursday, February 16: Classic Justifications and Critiques

Abrams v. United States (1919) (majority and dissent of Holmes, J.)

John Stuart Mill, On Liberty, Chapters 1, 2, 3 (1859)

James Fitzjames Stephen, Liberty, Equality, Fraternity (1873) (selection)

Herbert Marcuse, “Repressive Tolerance” (1965)

Robert P. George, Making Men Moral: Civil Liberties and Public Morality (1993) (Chapters 1 and 7)

 

Week 4, Thursday, February 23: Free Speech and Free Inquiry at the University, Part I—The Purpose of the University

Plato, Apology

Aristotle, Politics, Book 7.13; Book 8

Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (2020) (Introduction, Chapter 3)

Alasdair MacIntyre, “The Very Idea of a University: Aristotle, Newman, and Us,” British Journal of Educational Studies (2009)

Anthony Abraham Jack, The Privileged Elite: How Elite Colleges are Failing Underprivileged Students (2019) (Introduction)

Jonathan Haidt, “When Truth and Social Justice Collide, Choose Truth,” Chronicle of Higher Education (2022). 

 

Week 5, Thursday, March 2: Free Speech and Free Inquiry at the University, Part II—Free Speech, Academic Freedom, and Cancel Culture

Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018) (selection)

Patrick Deneen, “Against Academic Freedom,” Irish Rover (2022)

Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (2020)

Justin McBrayer, “Diversity Statements are the New Faith Statements,” Inside Higher Education (2022)

Brian Soucek, “How to Protect Diversity Statements from Legal Peril,” Chronicle of Higher Education (2022)

Brian Leiter, “Diversity Statements are Still in Legal Peril,” Chronicle of Higher Education (2022)

Clifford Ando, “Princeton Betrays Its Principles,” Chronicle of Higher Education (2022)

Sarah Brown, “‘Public-University Curricula are Government Speech,’ Florida Says,” Chronicle of Higher Education (2022)

Katha Pollitt, “Cancel Culture Exists,” The Nation (2022) 

 

Week 6, Thursday, March 9: Free Speech Skepticism

Gerhart Niemeyer, “A Reappraisal of the Doctrine of Free Speech,” Thought: Fordham University Quarterly (1950)

Jamal Greene, How Rights Went Wrong (2021) (selection)

Anthony Leaker, “Against ‘Free Speech,’” Cato Unbound (2019)

Note, “Blasphemy and the Original Meaning of the First Amendment,” Harvard Law Review (2021)

Marc O. DeGirolami, “The Sickness Unto Death of the First Amendment,” Harvard Journal of Law and Public Policy (2019) (selection)

Richard George Wright, “Free Speech as a Cultural Holdover,” Pace Law Review (2019)

 

MIDTERM PAPERS DUE FRIDAY, MARCH 10, BY 5:00 PM

 SPRING BREAK

 

LAW 

Week 7, Thursday, March 23: The Content-Based//Content-Neutral Framework, Expressive Conduct

United States v. O’Brien (1968)

Texas v. Johnson (1989)

Frisby v. Schultz (1988)

Renton v. Playtime Theaters (1986)

 

Week 8, Thursday, March 30: Categorical Exceptions to the Freedom of Speech 

Chaplinsky v. New Hampshire (1942) (fighting words)

Brandenburg v. Ohio (1969) (incitement to violence)

Miller v. California (1973) (obscenity)

United States v. Alvarez (2012) (false statements of fact)

 

Week 9, Thursday, April 6: Offensive Speech, Hate Speech 

Cohen v. California (1971)

Snyder v. Phelps (2011)

Matal v. Tam (2017)

Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” Harvard Civil Rights Civil Liberties Law Review (1982)

Jeremy Waldron, The Harm in Hate Speech (2012) (selection)

Steven D. Smith, “Liberalism and Hate Speech,” Law and Religion Forum (2022)

 

Week 10, Thursday, April 13: Compelled Speech and Association

West Virginia State Board of Education v. Barnette (1943)

Wooley v. Maynard (1977)

Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018)

303 Creative LLC v. Elenis (2022) [listen to LegalSpirits Podcast on the case]

 

Week 11, Thursday, April 20: Government as Subsidizer and Employee Speech

Rust v. Sullivan (1991)

Christian Legal Society v. Martinez (2010)

Pickering v. Board of Education (1968)

Garcetti v. Ceballos (2006)

 

Week 12, Thursday, April 27: Issues in Social Media Speech and Regulation 

Packingham v. North Carolina (2017)

Biden v. Knight First Amendment Institute (2021) (Thomas, J., concurring)

Lee C. Bollinger & Geoffrey R. Stone, eds., Social Media, Freedom of Speech, and the Future of our Democracy (2022) (selection)

Adam J. White, “Google.gov,” The New Atlantis (2018)

Kate Klonick, “The Terrifying Power of Internet Censors,” N.Y. Times (2017)

Ken Klippenstein, Lee Fang, “Truth Cops: Leaked Documents Demonstrate DHS’s Plans to Police Disinformation,” The Intercept (2022)

Thomas Fazi, “The Human Cost of Twitter’s Censorship,” Compact (2022)

 

FINAL PAPERS DUE FRIDAY, MAY 18, BY 5:00 PM

The Insights of Joseph Ratzinger

Thanks to fellow MOJ contributors for their reflections following the death of Joseph Ratzinger.  He was a humble man of deep faith who served the church as a professor and theologian, Archbishop of Munich, prefect of the CDF, and finally as Pope Benedict XVI – the Bishop of Rome.  He was not a lawyer or legal theorist, but his remarkable intellect and keen insights touched on virtually every area of thought, including law and politics.

Two articles I wrote were inspired by Benedict XVI’s speeches and writings: Religion and the Purification of Reason: Why the Liberal State Requires More than Simple Tolerance (here) wherein I drew upon Benedict’s address in Westminster Hall and his Regensburg address, and Love, Truth, and the Economy (here), a lengthy discussion of Benedict’s social encyclical Caritas in Veritate.

Let me here make just two brief points.

First, as I discuss (pp.1021-1025) in the piece on Caritas in Veritate, Ratzinger sees the problem in modern liberal democracy as a problem of anthropology in that it conceives of human beings in wholly materialist terms.  This, in turn, leads to thinking of solutions to social problems in a mechanistic fashion. “The current structures are sinful, the future structures will be just.  We have to design and construct them the way one builds appliances” (here p. 196).  But the idea that if we design and calibrate the right legal mechanisms a paradise on earth will follow is a utopian fantasy.  There will never be a perfect world.  “It does not exist” (p. 197).  Instead, we must “recognize the perpetual endangerment of human affairs” (p. 197) which calls for a continuous moral renewal through the cultivation of virtue.

These lessons are important things for those of us who are law professors to bear in mind in interacting with our students. We should be mindful and confront the materialist thinking that functions as a premise for so much of modern law.  We should also remind students of the limits of law.  The reform of statutes and legal rules is important, but law will never be sufficient to the task of building a just society.

Second, Ratzinger’s most bracing public observation was his comment (here) that modern liberal society risks becoming a “dictatorship of relativism that does not recognize anything as definitive and whose ultimate goal consists solely of one’s own egos and desires.”  That liberal society often regards the articulation of truth as an intolerable burden, such that truth claims cannot be authoritative and must give way to expressions of will, manifests itself in many ways.  That a human being cannot be recognized as a human being because his or her early existence is a burden to someone else is perhaps the most common example of this phenomenon.

Ratzinger’s observation was salient when he first shared it in 2005.  In 2023, when newspapers report as “news” the absurdity that a “man” recently gave birth to a child that “he” conceived with sperm donated by a “woman” (here and here), and when individuals are threatened with jail time for “misgendering” (here and here), it is plain that the dictatorship is still ascendent.   It remains to us, law professors and others, to follow Ratzinger’s example of humility, to respond with sensitivity in dealing with individuals, as well as courage “speaking the truth in love” (Eph. 4:15).