Sunday, January 29, 2023
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.
Tuesday, January 10, 2023
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.
Monday, January 9, 2023
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.
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
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)
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)
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
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
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
Saturday, December 31, 2022
One more reflection from Benedict XVI from me today, this one from perhaps my own favorite of his writings, Caritas in Veritate. This is from the section on the challenges of technology:
Linked to technological development is the increasingly pervasive presence of the means of social communications. It is almost impossible today to imagine the life of the human family without them. For better or for worse, they are so integral a part of life today that it seems quite absurd to maintain that they are neutral — and hence unaffected by any moral considerations concerning people. Often such views, stressing the strictly technical nature of the media, effectively support their subordination to economic interests intent on dominating the market and, not least, to attempts to impose cultural models that serve ideological and political agendas. Given the media's fundamental importance in engineering changes in attitude towards reality and the human person, we must reflect carefully on their influence, especially in regard to the ethical-cultural dimension of globalization and the development of peoples in solidarity. Mirroring what is required for an ethical approach to globalization and development, so too the meaning and purpose of the media must be sought within an anthropological perspective. This means that they can have a civilizing effect not only when, thanks to technological development, they increase the possibilities of communicating information, but above all when they are geared towards a vision of the person and the common good that reflects truly universal values. Just because social communications increase the possibilities of interconnection and the dissemination of ideas, it does not follow that they promote freedom or internationalize development and democracy for all. To achieve goals of this kind, they need to focus on promoting the dignity of persons and peoples, they need to be clearly inspired by charity and placed at the service of truth, of the good, and of natural and supernatural fraternity. In fact, human freedom is intrinsically linked with these higher values. The media can make an important contribution towards the growth in communion of the human family and the ethos of society when they are used to promote universal participation in the common search for what is just.
To mark the occasion of his passing, and to remember this wonderful address. May he rest in peace.
In the Western world it is widely held that only positivistic reason and the forms of philosophy based on it are universally valid. Yet the world's profoundly religious cultures see this exclusion of the divine from the universality of reason as an attack on their most profound convictions. A reason which is deaf to the divine and which relegates religion into the realm of subcultures is incapable of entering into the dialogue of cultures. At the same time, as I have attempted to show, modern scientific reason with its intrinsically Platonic element bears within itself a question which points beyond itself and beyond the possibilities of its methodology. Modern scientific reason quite simply has to accept the rational structure of matter and the correspondence between our spirit and the prevailing rational structures of nature as a given, on which its methodology has to be based. Yet the question why this has to be so is a real question, and one which has to be remanded by the natural sciences to other modes and planes of thought - to philosophy and theology. For philosophy and, albeit in a different way, for theology, listening to the great experiences and insights of the religious traditions of humanity, and those of the Christian faith in particular, is a source of knowledge, and to ignore it would be an unacceptable restriction of our listening and responding. Here I am reminded of something Socrates said to Phaedo. In their earlier conversations, many false philosophical opinions had been raised, and so Socrates says: "It would be easily understandable if someone became so annoyed at all these false notions that for the rest of his life he despised and mocked all talk about being - but in this way he would be deprived of the truth of existence and would suffer a great loss". The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures. To rediscover it constantly is the great task of the university.
Sunday, December 25, 2022
Merry Christmas, MOJ family! Here's the beginning of T.S. Eliot's "Animula" (little soul), about the child's life of wonder as it comes into and makes its early way in the world.
'Issues from the hand of God, the simple soul'
To a flat world of changing lights and noise,
To light, dark, dry or damp, chilly or warm;
Moving between the legs of tables and of chairs,
Rising or falling, grasping at kisses and toys,
Advancing boldly, sudden to take alarm,
Retreating to the corner of arm and knee,
Eager to be reassured, taking pleasure
In the fragrant brilliance of the Christmas tree,
Pleasure in the wind, the sunlight and the sea;
Studies the sunlit pattern on the floor
And running stags around a silver tray;
Confounds the actual and the fanciful,
Content with playing-cards and kings and queens,
What the fairies do and what the servants say.
Friday, December 23, 2022
And speaking of culture warriors, usually around this time of year one sees the standard, angry Establishment Clause challenge to a Christmas tree or nativity scene positioned in the wrong place, or a Stabat Mater sung in the wrong school concert. I'm sure those are also being pursued, according to the culture warrior tradition.
But this year, there is a different kind of Establishment Clause complaint in New York. The wasted remnant of an old blue law, which has been dismembered bit by bit over the years, is not making bar owners' spirits bright. Eris Evolution, a hipster bar in Brooklyn whose name recalls the Greek goddess of misery and discord, would like to serve alcohol from 4-8AM on January 1. But it happens to be a Sunday this year.
Mark and I chat about an EDNY district court opinion in the case denying an injunction to the bar, now up on appeal, in our last Legal Spirits podcast of the year.
Tuesday, December 6, 2022
A draft of a short paper for a recent symposium at Notre Dame Law School. Here's the abstract:
A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.
In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.
The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.
I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.
Sunday, December 4, 2022
From Book II.1 of the Metaphysics:
"The investigation of the truth is in one way hard, in another easy. An indication of this is found in the fact that no one is able to attain the truth adequately, while, on the other hand, we do not collectively fail, but every one says something true about the nature of things, and while individually we contribute little or nothing to the truth, by the union of all a considerable amount is amassed. Therefore, since the truth seems to be like the proverbial door, which no one can fail to hit, in this respect it must be easy, but the fact that we can have a whole truth and not the particular part we aim at shows the difficulty of it.
Perhaps, too, as difficulties are of two kinds, the cause of the present difficulty is not in the facts but in us. For as the eyes of bats are to the blaze of day, so is the reason in our soul to the things which are by nature most evident of all.
It is just that we should be grateful, not only to those with whose views we may agree, but also to those who have expressed more superficial views; for these also contributed something, by developing before us the powers of thought. It is true that if there had been no Timotheus we should have been without much of our lyric poetry; but if there had been no Phrynis there would have been no Timotheus. The same holds good of those who have expressed views about the truth; for from some thinkers we have inherited certain opinions, while the others have been responsible for the appearance of the former."
Tuesday, October 18, 2022
Notre Dame Law Review/Religious Liberty Initiative Symposium Monday on Unconstitutional Conditions and Religious Liberty
I'm looking forward to participating in this symposium on "Unconstitutional Conditions and Religious Liberty" next Monday, where I'll present an early draft of a new paper, "Mysterizing Religion." Fellow MOJers Tom Berg and Michael Moreland will join me, together with many other insightful scholars.
More soon on the paper. If any of our readers are in town, please do say hello!