Mirror of Justice

"The horror of the Same Old Thing"

From Chapter 25 of Lewis's The Screwtape Letters:

The horror of the Same Old Thing is one of the most valuable passions we have produced in the human heart--an endless source of heresies in religion, folly in counsel, infidelity in marriage, and inconstancy in friendship. The humans live in time and experience reality successively. To experience much of it, therefore, they must experience many different things; in other words, they must experience change. And since they need change, the Enemy (being a hedonist at heart) has made change pleasurable to them, just as He has made eating pleasurable. But since He does not wish to make change, any more than eating, an end in itself, He has balanced the love change in them by a love of permanence. He has contrived to gratify both tastes in them in the very world He has made, by that union of change and permanence which we call Rhythm. He gives them the seasons, each season different yet every year the same, so that spring is always felt as a novelty yet always as the recurrence of an immemorial theme. He gives them in His Church a spiritual year; they change from a fast to a feast, but it is the same feast as before.

Now, just as we pick out and exaggerate the pleasure of eating to produce gluttony, so we pick out this natural pleasantness of change and twist it into a demand for absolute novelty...The demand is valuable in various ways. In the first place it diminishes pleasure while increasing desire. The pleasure of novelty is by its very nature more subject than any other to the law of diminishing returns. And continued novelty costs money, so that the desire for it spells avarice or unhappiness or both. And again, the more rapacious this desire, the sooner it must eat up all the innocent sources of pleasure and pass on to those the Enemy forbids. Thus by inflaming the horror of the Same Old Thing we have recently made the Arts, for example, less dangerous to us than, perhaps, they have ever been, 'low-brow' and "high-brow' artists alike now being daily drawn into fresh, and still fresh excesses of lasciviousness, unreason, cruelty, and pride...

But the greatest triumph of all is to elevate this horror of the Same Old Thing into a philosophy so that nonsense in the intellect may reinforce corruption in the will. It is here that the general Evolutionary or Historical character of modern European thought (partly our work) comes in so useful. The Enemy loves platitudes. Of a proposed course of action He wants men, so far as I can see, to ask very simple questions; is it righteous? is it prudent? is it possible? Now if we can keep men asking 'Is it in accordance with the general movement of our time? Is it progressive or reactionary? Is this the way that History is going?' they will neglect the relevant questions. And the questions they do ask are, of course, unanswerable; for they do not know the future, and what the future will be depends very largely on just those choices which they now invoke the future to help them make. As a result, while their minds are buzzing in this vacuum, we have the better chance to slip in and bend them to the action we have decided on. And great work has already been done. Once they knew that some changes were for the better, and others for the worse, and others again indifferent. We have largely removed this knowledge. For the descriptive adjective 'unchanged' we have substituted the emotional adjective 'stagnant.' We have trained them to think of the Future as a promised land which favoured heroes attain--not as something which everyone reaches at the rate of sixty minutes an hour, whatever he does, whoever he is.

"Do You Wish To Know? Notes on a New Humanism in Legal Education"

Here is the text [UPDATE: and the video] of a talk I was delighted to give a few weeks ago for the inaugural conference of the Center for Law and the Human Person at Catholic University School of Law, ably directed by Elizabeth Kirk. A bit of a manifesto, I'm afraid, which I offer here now on the 19th anniversary of Mirror of Justice, a forum that has meant a great deal to me.

 

Do You Wish to Know? Notes on a New Humanism in Legal Education

March 14, 2023

A center for law and the human person is a center devoted to considering questions about humanity, about human nature, about what is good and bad for human beings. About what their ultimate ends are. About who humans are and what they should do.

Such a center, I will claim, is not only about these central questions concerning humanity, but also about the disciplines that have come to be known as the humanities, and the way that the humanities contribute to the formation of fully human beings—in the case of the center, fully human beings who also happen to be lawyers.

What would such a center pursue as part of its core humanistic mission?

Here there are some major challenges that such a fledgling center would confront. There is some bad news. Familiar bad news, perhaps, but bad news nonetheless worth reviewing. The humanities—the study of language (ancient and modern), history, philosophy, literature, the arts, and, on some understandings, religion and theology—are in free fall. The numbers of undergraduates majoring in these fields is shrinking dramatically. Dramatically, in fact, does not do the shrinking the barest justice.

Such is the lack of interest in the humanities that many colleges are eliminating humanistic study altogether. These include Catholic colleges, like Marymount University in Virginia, which recently announced the cutting out of humanistic learning. But not only Catholic colleges. Colleges, religious and secular, are doing away entirely with majors in these subjects, and they are also reducing humanistic study drastically. If these reports are credited, there simply is no longer even the minimal student interest in them necessary to sustain departments or self-standing courses.

And this is not an issue only for what are regarded as less elite institutions. An article in The New Yorker just a few weeks ago observed that over the last decade, humanities majors have dropped at an average rate of 50% at schools like Ohio State, Arizona State, Tufts, Notre Dame, Columbia, and Harvard. In fact, Harvard’s numbers are particularly striking. In 2012, the number of humanities majors at Harvard was 20%. In 2022, it was 7%. The numbers are forecasted to fall even more after that. Good economic times, bad economic times, and everywhere in between, the numbers continue to decline.

The explanations are many and sufficiently plentiful that one can insist on whichever reason one might prefer. Some say that the advent of technology like iPhones and social media (Twitter, TikTok, Instagram, and so on) has made the activity of the reading of humanistic books superfluous or uninteresting. There is surely some truth to this, a truth from which I do not exempt myself. I know (to my shame) that I am reading fewer books today than I read even ten years ago. I am consumed with my own phone. As a recent NY Times piece on what is wrong with the humanities put it, “The answer to any question, ‘What is Wrong…” is or ought to be, ‘I am wrong.’” The line was Chesterton’s, actually.

It has also been claimed that the language of centuries past is increasingly inaccessible or impenetrable to today’s generations of students, who prefer and are accustomed to a different way of communicating more suited to current circumstance. Again, there is also some truth here. I have found that a good meme can do as much to make, say, Marbury v. Madison memorable as can close attention to its elegant but difficult text.

Others say that economic concerns predominate. College is extremely expensive, and only becoming more so. Most students are required to take on crushing loans. Those loans put great pressure on students to find employments that are immediately remunerative, so that they can then proceed to even more well-paying work later.  The humanities are not seen as safe bets in an environment of such pressure. Employers are not looking for history or language majors. The skills taught by history professors in history departments are not seen as marketable. They do not distinguish a candidate as desirable, as they once did.

In a related development, witness the meteoric ascent of STEM fields. At Princeton University, where I am visiting this semester, a gigantic new engineering program is being constructed—a colossus that will dwarf the existing educational structures and that will, I am told, drive a massive expansion in Princeton’s student admissions in the coming years. Just as humanities majors have precipitously declined, so, too, have Computer Science majors and other applied science majors exponentially grown. The current Secretary of Education, Miguel Cardona, has emphasized repeatedly that colleges and universities must “meet the needs of the economy,” and those needs are connected overwhelmingly to education in STEM fields, not the humanities.

And universities, here and abroad, have become, as Adrian Pabst puts it in a recent piece in the New Statesman, “managerially controlled and market driven.” College and university administrators (some of whom, I hasten to add, are lovely, lovely people, Dean Payne), whose rise in numbers and power within the universities has often been remarked, tend to see the function of the university in these terms as well. They are liable to ask questions like (as one administrator did recently ask me), “Why are you assigning Plato in your free speech and free inquiry class? What does that offer the students?” What, indeed, when a STEM-exclusive education can produce marvels such as ChatGPT, which, some say, makes humanistic study even more useless and anachronistic than it was already.

And, of course, a final explanation for the collapse of humanistic learning is internal. Humanities professors themselves increasingly disdain or even are ashamed of the learning and the knowledge that form the core of their own disciplines. Classical languages departments at the most elite universities have begun to do away with requirements in the very languages that constitute their discipline. A Latin major with no Latin. English departments rename themselves something else—anything else—mortified by the learning that constitutes their own field. As one Harvard English professor put it in the New Yorker piece, “One of the tragedies of the British Empire is that everyone read Dickens, so we must read him too.” Not exactly a ringing endorsement of Dickens, though that is about the best that one can hope for in the way of defense. Small wonder that large numbers of students flee such disciplines. This is the death of learning, as the title of a recent book by John Agresto puts it, “not by murder, but by suicide.”

I do not intend to pick among these explanations or spend much more time surveying reasons. Probably they all have some explanatory role. I want instead to think about effects. About what this collapse means. After all, one might reasonably ask, so what? What difference does it make that many fewer students are interested in these subjects? Disciplines come and go in the history of human thought. Astrology was once studied in universities. Alchemy was, too.

Academic disciplines can become extinct, and there need not be any regret at their dying. Or they can transform themselves into something else. Psychiatrists today are trained to be chemists where once they were trained to be psychoanalysts. English departments can become social media studies departments. And, at any rate, the appetite for the study of Assyrian or Linear B or even the Romance Languages probably never was all that high to begin with. Perhaps it should not be.

The death spasms of the humanities are only to be regretted, and efforts to resuscitate them undertaken, if we can conclude that there is something of worth in them, that they continue to contribute something of value. That requires a defense of some kind. An apology, one might say, for the humanities. So…do they? The author of the New Yorker article that I mentioned observed: “scholars have begun to wonder what it might mean to graduate a college generation with less education in the human past than any that has come before.”

That author might have consulted a law professor or two for answers. After all, we get lots of undergraduates right after their college years, so that if there are effects of the moribund humanities to see, we might be likely to see them.

Continue reading

"The Role of Tradition in Constitutional Law"

Here's the video of a panel with Professors Ernie Young, Kevin Walsh, and me, discussing what I think of as a long-existing, though now emerging, method of constitutional interpretation and law. We all brought different perspectives to the matter, and it was fun to talk together. The program is part of Professor Joel Alicea and Professor Walsh's Project on Constitutional Originalism and the Catholic Intellectual Tradition at The Catholic University, Columbus School of Law. I enjoyed the conversation and questions very much.

 

 

Inaugural Conference of the Center for Law and the Human Person at CUA

I am delighted to be participating in this conference at Catholic University of America, Columbus School of Law, next Tuesday, together with fellow MOJ-ers Profs. Mary Leary  and Lisa Schiltz, as well as Prof. Carter Snead. The conference inaugurates the new Center for Law and the Human Person, directed by Elizabeth Kirk. The theme of the conference is "Rightly Ordered Law and the Flourishing of the Human Person."

The title of my talk is "Notes on a New Humanism in Legal Education." I'm told the conference will be recorded, but if you are in DC, please register at the link and do stop by and say hello! I'll have more to say about the substance of my talk soon.

MacIntyre on Reconceiving the Contemporary University

From "Reconceiving the University and the Lecture," in Three Rival Versions of Moral Enquiry 230-31.

The preliberal modern university was a university of enforced and constrained agreements. The liberal university aspired to be a university of unconstrained agreements and hence its abolition of religious and moral tests, and hence also, so I have argued, its present endangered state. Such reformers as those who propose some version of the Great Books curriculum ignore the fundamental character of our present disagreements and conflicts, presupposing possibilities of agreement of a kind which do not at present exist. What then is possible? The answer is: the university as a place of constrained disagreement, of imposed participation in conflict, in which a central responsibility of higher education would be to initiate students into conflict. In such a university those engaged in teaching and enquiry would each have to play a double role. For, on the one hand each of us would be participating in conflict as the protagonist of a particular point of view, preserving and transforming the initial agreements with those who share that point of view and so articulating through moral and theological enquiry a framework within which the parts of the curriculum might once again become parts of the whole. The second task would be to enter into controversy with other rival standpoints, doing so both in order to exhibit what is mistaken in that rival standpoint in the light of the understanding afforded by one's own point of view and in order to test and retest the central theses advanced from one's own point of view against the strongest possible objections to them to be derived from one's opponents. So systematically conducted controversy would itself contribute to systematically conducted moral and theological enquiry, and both would inform that teaching in which students were initiated into both enquiry and controversy.

On the other hand, each of us would also have to play a second role, that not of a partisan, but of someone concerned to uphold and to order the ongoing conflicts, to provide and sustain institutionalized means for their expression, to negotiate the modes of encounter between opponents, to ensure that rival voices were not illegitimately suppressed, to sustain the university -- not as an arena of neutral objectivity, as in the liberal university, since each of the contending standpoints would be advancing its own partisan account of the nature and function of objectivity -- but as an arena of conflict in which the most fundamental type of moral and theological disagreement was accorded recognition.

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.

"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

Caritas in Veritate, paragraph 73

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.

From the conclusion of Pope Benedict XVI's 2006 Regensburg Address

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.