Glenn Reynolds should not be disciplined

by Henry on September 23, 2016

Glenn Reynolds is a piece of work. Much of his blogging is in the ambiguous borderland between right wing hackery and active depravity. Even so, I was disturbed to see this in Inside Higher Ed:

The University of Tennessee at Knoxville says it’s investigating a law professor’s tweet suggesting that motorists “run down” protesters blocking traffic following a fatal police shooting in Charlotte, N.C. The professor, a popular blogger with the Twitter handle @Instapundit, says he hasn’t been contacted by the university directly … On Thursday, Melanie D. Wilson, dean of Tennessee’s College of Law, posted a statement to the university website saying that she was “aware of the remarks” and of the “serious and legitimate concerns expressed by members of the [law college] family and the University of Tennessee community, as well as concerned citizens across the country.”Wilson said Reynolds’s comments “do not reflect my views and opinions, nor do they reflect the values of the college and university,” and that she, administrators and faculty members are “investigating this matter.”

The reason is straightforward. As Chris, Alex Gourevitch and Corey have argued at length, the lack of job security across much of the US means that employers can threaten your job to discipline you for things they don’t like, including punishing activities that have nothing to do with one’s employment. I don’t like Reynolds being investigated for a tweet that doesn’t have anything obvious to do with his employment as a law professor. If he were to be punished for it, it would be seriously problematic.

To be clear – this is not a matter of academic freedom. Reynolds isn’t, as far as I can tell, acting as a scholar when he blogs or tweets, and I don’t think anyone with two braincells to rub together could mistake his blogging and tweeting for scholarship. It’s opinionating – often extremely nasty opinionating in my opinion – but that’s it. Unless Reynolds puts it down as part of his employment activity in his annual report, I can’t see how it’s connected to his role at the University of Tennessee, and even if he did, it would seem to me a stretch.

The real issue is broader and more straightforward – people should not be punished on the job for stuff they do off it. Unless there is evidence that Reynolds is biased against black people or people with different politics in the classroom, I don’t see how his tweeting or blogging, however nasty, is relevant. I understand that Reynolds has been suspended for a month from his op-ed column at USA Today – here there is arguably more of a case, given that they are both forms of opinionating but it’s a case that I’m still skeptical of. I can’t help but think that USA Today knew exactly what they were getting when they hired him – he hasn’t changed much over the years. It seems to me a bit rich that they should be getting skittish now.

It could be argued that Reynolds was using the tweet to incite other people to commit violence. For sure, Reynolds has been eager to accuse others of advocating violence in the past, including his ridiculous claim that Erik Loomis was using “eliminationist rhetoric” for saying that he would like to see Wayne LaPierre’s “head on a stick.” Yet this doesn’t seem to me like direct incitement (although it’s closer than Loomis’s metaphor) – it’s more plausibly a nasty way of saying that he doesn’t particularly care about the lives of the black protestors, and personally wouldn’t be perturbed if they got hurt or killed. That says some very unpleasant things about Glenn Reynolds (who I believe is, rather surprisingly, the son of a genuine civil rights activist), but it doesn’t say that he is specifically trying to encourage people to kill others.

Finally, there’s a temptation to see this as just deserts. After all, Reynolds helped start the ball rolling on the Erik Loomis affair, and despite his angry protestations that he “never called for Prof. Erik Loomis to be fired,” seemed very happy to approvingly quote a correspondent arguing that “at a minimum, some people at URI should occasionally monitor [Loomis’s] class or question his students to find out whether he brings anywhere close to that amount of venom to discussions with students who disagree with him.”

The temptation ought to be vigorously resisted. Glenn Reynolds may be a despicable and mendacious hypocrite but again, this doesn’t change the facts of the case – we shouldn’t use people’s jobs and livelihoods to punish them for things they do in their personal lives that aren’t connected to their jobs.

I can’t imagine that Reynolds will be particularly enthused by this intervention – it certainly hasn’t been written in a fashion calculated to please him. Furthermore, he detests me personally (given what he is, I’d be worried if he didn’t; to misquote someone much better than me, I welcome his hatred). Even so, I specifically and strongly urge the University of Tennessee to drop this investigation. There is an important general principle of employers not punishing people for what they do off the job, which needs to be defended, and to the greatest extent possible, extended. That Reynolds, both in his personal conduct and political beliefs isn’t committed to this principle, is entirely and completely irrelevant.

{ 206 comments }

1

bartkid 09.23.16 at 2:51 pm

He is being punished; he has to live with himself.

2

Ben Alpers 09.23.16 at 2:55 pm

I disagree that this isn’t about academic freedom. Paragraph 3 0f the AAUP’s 1940 Statement on Academic Freedom, which is commonly seen as the gold standard definition of it, is devoted to extramural political speech:

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

The AAUP clarifies this in a footnote, which reads in part:

Paragraph 3 of the section on Academic Freedom in the 1940 “Statement” should also be interpreted in keeping with the 1964 “Committee A Statement on Extramural Utterances,” Policy Documents and Reports, 31, which states inter alia: “The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position. Extramural utterances rarely bear upon the faculty member’s fitness for the position. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.”

3

Rich Puchalsky 09.23.16 at 3:05 pm

I was eagerly waiting to comment that it was a good thing that he hadn’t written that he wanted to see protestor’s heads on sticks, but sadly the OP already made that connection.

4

Manta 09.23.16 at 3:18 pm

Couldn’t agree more with the OP.
Additional kudos to Henry for writing this in support of someone he strongly disagrees with.

5

js. 09.23.16 at 3:26 pm

I’m OK with the USA Today sanction (tho if that were his primary employment, I may have felt differently). But on the main point, this seems exactly right.

6

Manta 09.23.16 at 3:29 pm

A small point: would his tweet warrant an investigation into whether “Reynolds is biased against black people or people with different politics in the classroom”?

On the other hand, such investigation would have an obvious chilling effect (and may considered a punishment in itself); on the other hand, how do you know if he IS biased in class too?

7

TR Donoghue 09.23.16 at 3:34 pm

Agreed with everything you said Henry. I’d only add that since the University of Tennessee is a public institution there are serious 1st Amendment concerns at play here. Public employees have lessened 1st Amendment rights when acting in their official capacities, but in this case, as you said, this tweet has no nexus to his employment.

8

TM 09.23.16 at 3:41 pm

What did he tweet? Incitement to violence is not a light matter, if that’s what he did.

9

TM 09.23.16 at 3:46 pm

“It seems to me a bit rich that they should be getting skittish now.”

Let’s be clear: Reynolds has no more a right to have his columns published by USA Today than you or me so his suspension would not violate any free speech or other rights that he has (there may be a contract issue, I’m sure their contracts are worded so they have the upper hand). But it is already predictable that right-wingers far and wide will denounce this act as censorship and what not, and too many liberals are too clueless as to what freedom of speech does and does not entail to not jump on the BS-wagon.

10

Manta 09.23.16 at 3:48 pm

“Let’s be clear: Reynolds has no more a right to have his columns published by USA Today than you or me so his suspension would not violate any free speech or other rights that he has (there may be a contract issue, I’m sure their contracts are worded so they have the upper hand)”

How to the miss the point of the post: “the lack of job security across much of the US means that employers can threaten your job to discipline you for things they don’t like, including punishing activities that have nothing to do with one’s employment.”

11

Manta 09.23.16 at 3:50 pm

Let’s be clear: Reynolds has no more a right to have flip burgers for (insert company name here) than you or me so his suspension would not violate any free speech or other rights that he has (there may be a contract issue, I’m sure their contracts are worded so they have the upper hand)

12

Brett 09.23.16 at 4:04 pm

I agree with Henry’s point, although this raises an interesting issue with the “no platforming” ideology. Or should the latter only apply at the point of hiring and/or contracting?

People also tend to treat non-university employers as “endorsing speech” if they keep someone with controversial and/or unpopular opinions on their payroll.

13

Manta 09.23.16 at 4:07 pm

Answering @7
http://www.tennessean.com/story/news/2016/09/22/university-tennessee-professors-twitter-account-suspended-over-charlotte-posts/90825720/

“Twitter briefly suspended Glenn Reynolds’ account after he responded to a tweet from a TV news station in Charlotte that showed protesters on Interstate 277. “Run them down,” he wrote.

He posted to Twitter shortly after 10 a.m. Thursday that his account had been unblocked after he agreed to delete the offending tweet.”
There is also a statement by Reynolds at the end of the new article.

14

Alex R 09.23.16 at 4:15 pm

I’m on board with the OP’s general principle, but I think an exception should be made for certain categories of public figures, especially those that represent an institution. If a university president or a corporate CEO had said the same things, it would directly implicate their job performance, and I would have no difficulty with sanctioning them for it.

15

Lee A. Arnold 09.23.16 at 4:16 pm

Isn’t the suggestion that motorists “run down” protestors an incitement to first degree murder? There may be no law against this incitement, but it seems that emotional clowns of this sort shouldn’t be teaching students.

16

Kiwanda 09.23.16 at 4:23 pm

Although the circumstances vary, I’d say Steven Salaita, Bruce Shipman, David W. Guth, and arguably John McAdams, Tim Hunt, and Laura Kipnis, were also punished by academic institutions for expressing their opinions. (The last three expressed opinions about work-related topics, Tim Hunt in an ironic way.)

17

Paul Reber 09.23.16 at 4:27 pm

My intuition here is different. I think I agree in principle that you shouldn’t punish people on the job for things done on their own — but the interesting point is the degree to which his tweet reflects “incitement to violence” as a form of dangerous speech not necessarily protected by the 1st amendment.

I think it does. And curiously, my sense of the magnitude of the offense is related to the number of twitter followers you have. Some random kid/internet-troll tweeting something inappropriate to 5 friends does not seem like a big deal. But advocating for “Run them down” when you have millions of followers seems closer to the “fire in a crowded theater” moral constraint on free speech.

I”m unsure, though. Is that a reasonable approach? The louder your voice, the more constrained you are required to be and the less 1st amendment protection you have? Could be, I think.

Bottom line, I’m on the other side here. I think Reynolds should be sanctioned and possibly even removed from his academic post to reflect the fact that his stature there gives additional weight to his voice which he has shown to use irresponsibly consistently and without remorse and which therefore reflects poorly on his employer and their educational mission as a consequence.

Full disclosure: I am a tenured academic and think it would be fair to hold myself to the same standard even though I am aware that the definition of “dangerous” speech is unnervingly slippery. My faculty handbook specifically doesn’t protect me from a felony conviction outside of the office, as a point of distant reference.

18

Layman 09.23.16 at 4:29 pm

I don’t really know how to feel about this. My knee-jerk reaction lacks any sympathy for Reynolds, for a variety of reasons, not the least of which is frankly the envy that academics enjoy a protection that essentially no one else does. Of course that’s silly.

I see the slippery slope argument in one direction, but what about the other? Is there nothing Reynolds could say or write outside of his employment which is worthy of an investigation and possibly punishment of some kind? Does tenure confer a total immunity to discipline for one’s extra-teaching behavior?

19

Manta 09.23.16 at 4:45 pm

Paul, would you say the same about an academic that shares your values?
E.g. (assuming that you are from the left) someone that calls for revolution? Or armed resistance against occupiers?

Moreover, IANAL, but I am pretty sure your first-amendment analysis is flawed: see e.g.
https://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/

“Holmes’ famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority.”

20

Alex K--- 09.23.16 at 4:45 pm

“Isn’t the suggestion that motorists “run down” protestors an incitement to first degree murder?”

Sounds like a call to self-defense to me. For all I’ve read, it’s the protesters who are being violent.

21

tom 09.23.16 at 4:49 pm

Bravo, Henry, this is excellent.

22

Daragh 09.23.16 at 4:56 pm

Kudos Henry – good to see someone maintaining intellectual and ethical integrity even when dealing with unpleasant folks.

23

tom 09.23.16 at 4:56 pm

@layman

It is not about tenure per se. The same principle that Henry is defending should apply to for a cashier at Walmart. Obviously a cashier at Walmart does not enjoy the protection that tenure offers. But whatever one may think of tenure for professors, there are some aspects of tenure (i.e. the freedom of not being fired for things you say off the job) that should be spread more widely to other jobs as well. Taking this freedom away from professors may make the distribution of this freedom more equal (almost nobody has it) but it is hard for me to see how it would be an improvement.

24

Manta 09.23.16 at 5:00 pm

http://www.lawyersgunsmoneyblog.com/2016/09/glenn-reynolds-reiterates-belief-in-the-summary-execution-of-protestors
“Reynolds should not be disciplined. Reynolds’s words, reprehensible as they are, were not plausibly an incitement in the sense that would exclude them from First Amendment protection. Reynolds should be protected by academic freedom, even if his own commitment to the concept is less than robust.”

25

Layman 09.23.16 at 5:02 pm

tom: “Taking this freedom away from professors may make the distribution of this freedom more equal (almost nobody has it) but it is hard for me to see how it would be an improvement.”

I quite agree – that’s why I said it was a silly reaction.

That said, is there nothing Reynolds (or anyone) could say that would warrant discipline?

26

js. 09.23.16 at 5:22 pm

Manta @6 — If Reynolds is in fact biased in the classroom, then (it seems to me) that bias should be uncovered through normal processes and methods of faculty evaluation. That it might not (and indeed it might not!) seems to me a problem with those methods of evaluation. Either way, I don’t see it should have much to do with the tweet. I might be persuadable as to other options here, but that would be my first reaction.

27

bruce wilder 09.23.16 at 5:26 pm

My intuition runs counter to Henry’s here.

This part of the OP seems to me to assume away the problem:

Reynolds isn’t, as far as I can tell, acting as a scholar when he blogs or tweets, and I don’t think anyone with two braincells to rub together could mistake his blogging and tweeting for scholarship. It’s opinionating – often extremely nasty opinionating in my opinion – but that’s it. Unless Reynolds puts it down as part of his employment activity in his annual report, I can’t see how it’s connected to his role at the University of Tennessee, and even if he did, it would seem to me a stretch.

I don’t know how Reynolds characterizes his blogging in his annual reports to his academic employer, but I would be surprised if his high public profile as a writer of opinion — much of it built on his blogging and now tweeting — was not featured in some wise.

Reynolds has made himself a public figure with the aim of influencing the public discourse as part of his chosen career as an academic lawyer. I do not think it is at all inappropriate that his publishers (Twitter, USA Today) or his academic employer (which presumably encourages service to the community and explicitly includes establishing a public profile to comment on issues of public import as an option) to take notice when he crosses a line and violates norms.

In this case, Reynolds has apologized for his tweet, which ought to be taken into account — in fact, inducing such apologies is a useful function of the threat of sanction. People make mistakes and such apologies are useful in themselves, but I doubt that they are ever entirely spontaneous or unconditioned on the threat of sanctions. I do not think it would be at all a bad thing if the University “investigated” and issued some kind of reprimand for this instance or, better, for certain patterns in his rhetoric which are reprehensible for undermining public and social values that the University is pledged to support and reinforce.

A complete suspension of judgment or blanket immunity does not seem to me to be a sustainable or useful principle.

28

rea 09.23.16 at 5:28 pm

well, (1) in his capacity as a professor at a state-run institution, he is entitled to first amendment protection, which might not apply if he worked for a private university. (2) Academic freedom is a different issue than first amendment protection, but yeah, academics shouldn’t be fired for their expression of political views, (3) USA Today is a very different issue–they pay him to express opinions for them, and that gives them a legitimate concern about what opinions he expresses, (4) Twitter is a private-owned forum; it does not have to provide a forum for views it finds repugnant (To put Nos. 3 and 4 somewhat differently, USA Today and Twitter have free speech rights, too–they ought not to be required to provide a forum for views they don’t share), and (5) “Incitement” (in law, anyway) involves a kind of immediacy not present in Reynold’s remark; “Incitement” is the guy at the head of an armed mob who points to a crowd of protestors and yells, “charge!”

29

kidneystones 09.23.16 at 5:29 pm

Yes. In order for there to be censure of any kind, a reasonable person would have to assume that Reynolds really does want to see protesters who block roads ‘run down.’ We live in a world where Swift would have been sanctioned/removed for writing ‘A Modest Proposal.’ On Henry standing up to defend someone he detests: Kudos, especially during this rather more testy time.

30

Matt Weiner 09.23.16 at 5:43 pm

“Isn’t the suggestion that motorists “run down” protestors an incitement to first degree murder?”

Sounds like a call to self-defense to me. For all I’ve read, it’s the protesters who are being violent.

Nonsense. For one thing, nothing the protestors have done justifies use of deadly force on the part of motorists; a motorist who shot them in order to clear his path out would be a murderer, and that would be just as true of one who deliberately drove over them.

For another thing, Reynolds said “run them down,” not “run them over.” To run someone down with a car is to deliberately target them. Reynolds was absolutely calling for deliberate killing here, rather than simple indifference to the safety of protestors.

31

bruce wilder 09.23.16 at 5:44 pm

In order for there to be censure of any kind, a reasonable person would have to assume that Reynolds really does want to see protesters who block roads ‘run down.’

And, a good test of this is what Reynolds says upon reflection and upon getting a reaction. In this case, Reynolds has apologized, which is exactly the behavior the threat of sanctions can induce. I don’t think I would want to try Reynolds’ brand of crazy in a world of blanket immunity.

32

Rich Puchalsky 09.23.16 at 5:48 pm

I think it’s clear that Reynolds really was advocating killing people — his apology makes it clear that he was advocating “drive on”, as in “keep driving when your car is blocked by protestors, because you are frightened.” Since this involves actually running into people, I think it’s worse than a merely rhetorical “people should run over those protestors”.

I still don’t think he should be disciplined for it. People advocate killing all the time, and people in power even more so than ordinary people. Reynolds is just taking advantage of his access to join the elite in one of its favorite occupations.

33

Sebastian H 09.23.16 at 5:48 pm

This particular incident seems directly parallel to Erik Loomis’s “head on a stick” rhetoric. It is overblown and unhelpful, but shouldn’t get you fired from your job.

As a more general principle, while there are some very few cases where outside action reflects on your ability to lead (or perhaps be a PR flack), for the most part we should strive for a world where one’s outside legal behavior doesn’t get you fired from your job. (I might even extend it to some forms of unrelatedly illegal activity but for the sake of a clean statement of principles…)

It is the same problem with the Clementine Ford/Michael Nolan Facebook instance. Progressives fought against morals clauses for a reason.

34

bruce wilder 09.23.16 at 5:53 pm

In his apology, Reynolds characterizes his intention as recommending that drivers flee a scene where the driver might be at risk from the actions of protestors. Not to engage in lethal combat.

I doubt that this apology is entirely truthful regarding his original impulse that gave rise to the expression in question, but I don’t think one should hope for virtue from such as Reynolds — the aim should be to induce Reynolds expressions of hypocrisy in tribute to virtue. It is a low bar, but he can get over it, if given a timely kick in the seat of his pants. (And, no I am not calling for people to kick Reynolds — really I’m not.)

35

anderson 09.23.16 at 6:13 pm

“a tweet that doesn’t have anything obvious to do with his employment as a law professor.”

Do you believe that professors of law should be inciting unlawful behaviour?

“… expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position.”

implies that an opinion that “clearly demonstrates the faculty member’s unfitness for his or her position” is grounds for dismissal. Reynold’s “extramural utterance” advocating unlawful activity clearly demonstrates unfitness for a position as professor of law.

36

Rich Puchalsky 09.23.16 at 6:20 pm

The apology is worse than the original, though. Here’s one of his many explanatory statements:

“Those words can easily be taken to advocate drivers going out of their way to run down protesters. I meant no such thing, and I’m sorry it seemed I did. What I meant is that drivers who feel their lives are in danger from a violent mob should not stop their vehicles.”

He’s also said that the mere act of blocking traffic in an agitated protest is violent, and would presumably make the protestors a violent mob in his mind. So maybe he’s not advocating going out of your way to run down protestors, but if they’re blocking the road and you’re driving on, where else are you going to go?

This is how most racist violence in the U.S. happens, by the way. Only a tiny minority of the worst racists set out to kill people. Most of the shootings and so on happen because frightened white people decide that an angry black person is an immediate threat to them in some way.

37

bruce wilder 09.23.16 at 6:22 pm

I have questions, too, about “people should not be punished on the job for stuff they do off it” in a world in which ordinary people are routinely fired or denied employment on the basis of drug tests and credit reports.

Try whistleblowing and, assuming you are not jailed which is a big assumption in high profile cases, see what that does for your career and employment prospects.

38

Manta 09.23.16 at 6:24 pm

Bruce, hence the “should”.
Anyway, I remind that USA is not the only country in the world…

39

bruce wilder 09.23.16 at 6:25 pm

This is how most racist violence in the U.S. happens, by the way. Only a tiny minority of the worst racists set out to kill people. Most of the shootings and so on happen because frightened white people decide that an angry black person is an immediate threat to them in some way.

And, then they lawyer up and get off because the law is shaped by people like Glenn Reynolds.

40

bruce wilder 09.23.16 at 6:29 pm

Manta @ 36

“should” is weak vinegar for a salad of class distinctions

No, the USA is not the only country in the world. In Saudi Arabia, they whip bloggers.

41

TM 09.23.16 at 6:52 pm

Manta 9: You are the one missing the point here. Writing for USA Today isn’t Reynolds’ day job. He’s not depending on it for a living. USA Today is offering him a platform to speak. They don’t have to, and they have the right to not offer that platform. If they decide that Reynolds’ writing insane tweets is proof that he’s not a good choice for columnist of a respectable newspaper, they are perfectly within their right. That decision is also not punishment or retaliation for non-work related protected speech like it would be if Walmart fires a cashier because of a critical tweet.

Of course if they were an actually respectable newspaper, they wouldn’t have offered that platform to an asshole in the first place but that’s the liberal media for you.

42

Kiwanda 09.23.16 at 6:54 pm

“In this case, Reynolds has apologized, which is exactly the behavior the threat of sanctions can induce.”

An apology under threat is worth less than an apology without, and as far as incitement goes, might even be counterproductive.

“I”m unsure, though. Is that a reasonable approach? The louder your voice, the more constrained you are required to be and the less 1st amendment protection you have? Could be, I think.”

No. If someone, god forbid, did attack protestors with a car, Reynolds would not be culpable. (Well, he’s morally reprehensible, but surely not legally culpable.) There was recently a case involving a blog and “threatening” hyperbole, won for the hyperbolic blogger by Ken “Popehat” White’s firm, re-affirming such a principle.

The idea that someone on some “side” of a dispute is responsible for the actions of anyone else viewed as being on the same “side” is natural, commonly held, and wrong.

43

rea 09.23.16 at 7:12 pm

If someone, god forbid, did attack protestors with a car

This did , in fact, happen although in Ypsilanti, MI rater than Charlotte, NC:

http://www.mlive.com/news/ann-arbor/index.ssf/2016/09/no_one_injured_as_car_drives_t.html

44

Paul Reber 09.23.16 at 7:41 pm

Paul, would you say the same about an academic that shares your values?
E.g. (assuming that you are from the left) someone that calls for revolution? Or armed resistance against occupiers?

Actually, yes, I would. If somebody like Paul Krugman (as in somebody with a significant audience) called for Occupy protestors to engage in violent activity, I think the same response is appropriate: review of actions and possible censure/removal (apologies to Prof Krugman, it’s not really conceivable he would do this, but it’s an example). It’s not automatic that one obnoxious tweet is grounds for removal, but if there is a consistent pattern, lack of remorse, apparent malicious intent, I think it’s not unreasonable to act (note that these may not be true in the Reynolds case — if he has apologized, for example).

The “fire in a crowded theater” reference was mainly intended to point out that we generally do think there are some sort of limits on “dangerous” speech. I’m well aware this is a slippery and difficult area figuring out what is “hate speech,” “sedition” or simply appropriate but exuberant disagreement. This particular event is a good example of where an actually important line gets crossed — although, I’m honestly not sure, which is why I described it as my intuition.

The specific-to-21st-century element that is new and interesting is whether the size of your audience matters and how useful that is to the hard moral philosophy question. The old version is something like the difference between making an inappropriate statement in a bar (a drunken “kill all the xxx”) versus the same statement at a microphone in front of a crowd of thousands aimed to incite a riot, violence or even genocide (as in Rwanda). There’s a difference there. Is the number of twitter/facebook/etc/ followers the same difference?

45

UpToIso 09.23.16 at 8:04 pm

I hope he can keep his uni job, but I’m extremely okay with him losing his USA Today job, in the sense that I’m bitterly opposed to any legal regime or set of norms in which someone hired for their opinions cannot also be fired for their opinions. The decision to not hire someone because they have the wrong opinions is also a kind of censorship, a form of censorship that becomes more powerful if we decide that the people who do get hired can or should never be fired.

46

Manta 09.23.16 at 8:43 pm

@39 TM
” That decision is also not punishment or retaliation for non-work related protected speech like it would be if Walmart fires a cashier because of a critical tweet.”

1) I am not sure what you mean by “protected” in this context: (IANAL) neither USA Today nor Walmart are government entities/subordinates/financed, and as such they are not bound by the 1st Amendment (and most of the point of the OP is that for most US employed of a private entity no speech is protected).
2) The assertion whether what he wrote is or not “work-related” is part of the contention: unless you are claiming that pretty much everything that a columnist says is work-related. (Mind you, I would agree with you if G. were e.g. a PR flak for some company).

47

Michael 09.23.16 at 10:08 pm

May I speak briefly from another country? In the UK there are laws aimed to prevent incitement to racial hatred or to violence, and people are prosecuted under those laws from time to time. Just now police are supposed to be investigating some of the many post-Brexit hate incidents (though with what effect is not clear). Then, too, following the urban riots in London and elsewhere some years ago a number of people who seemed to incite to rioting online were given custodial sentences. And a chap who made an unfunny joke about blowing up an airport because of some inconvenience to him found himself on the same wrong side of these laws.

Some of these verdicts were way over the top, yes, and stupid. The judges slid down that slope all too easily. But I find it hard to deny the principle of there being some legal constraint on hateful, and especially inciting, speech. And what about Germany, with its laws against promulgating specifically Nazi opinions and symbols?

Still, I doubt that the Tweet by Reynolds would be prosecuted in the UK (can’t say about Germany, if the tweet were aimed at Jews), though he might be found culpable if the situation seemed very volatile, as it apparently seemed to the judiciary during those riots in the UK. And in the UK Reynolds’ position would probably protect him, however repellent he might seem.

HOWEVER. What about the AAUP’s position offered above? “The controlling principle is that a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position.” I gather this guy is employed in a law department. Does this seem like the sort of thing a professor of law should be saying in public? Is this not a reflection on his qualification to represent the profession of law … and, for that matter, his institution? I will go with Henry’s idealism, since it seems a good general principle to defend against arbitrary constraint on political expression. This probably also means that the expression of casual and habitual prejudice, however loathsome, should fall under the heading of moral failing rather than legal transgression. But still, a moral failing is a failing. As I recall, in Oxford many years ago it was discovered by interested parties that the only grounds on which a particular professor could be censored or dismissed was ‘moral turpitude’. Is there not some equivalent — if equally vague and speculative — principle operating in US universities that might suggest at least some form of censure?

48

James Wimberley 09.23.16 at 10:16 pm

Rea in #27 :“Incitement” is the guy at the head of an armed mob who points to a crowd of protestors and yells, “charge!”
Sexist stereotyping here.
Note that Delacroix’ menswear style guide for charging the barricades includes a top hat.

49

Corey Robin 09.23.16 at 10:26 pm

I second much of what Henry says here. I’ll also add this: Aren’t we getting exhausted with round after round of a professor saying something, even something terrible in this case, only to have a university, which should be dedicating its increasingly scarce resources to things that matter, launch an investigation of that professor? It just seems like an absurd waste of time all around.

50

Corey Robin 09.23.16 at 10:32 pm

Though I should say that I also agree with Ben, and disagree with Henry, on the academic freedom issue. But the workplace principle more than suffices for me. And indeed, as Henry and I argued in our original post about the Loomis affair, because the workplace principle is more universal than academic freedom (insofar as it applies to a broader category of workers), I am more than happy to defend the position on those terms.

51

Name 09.23.16 at 10:44 pm

#10 Reynolds has no more a right to have flip burgers for (insert company name here) than you or me so his suspension
have employee rep check the negotiated contract (employee union benefit)

52

Omega Centauri 09.23.16 at 10:46 pm

I’m on the side on Lee, Paul and Matt. This certainly sounds to me like incitement , or something awfully close to incitement. And from someone whose job as an academic lawyer entails creating or enhancing respect for the law from his students. So at least a preliminary investigation seems warranted. Now the fact that he apologized should be part of that investigation -and should be at least partially exculpatory. The best outcome in my mind is that if knows he went too far, and feels chastised, but doesn’t suffer serious professional harm either.

53

Omega Centauri 09.23.16 at 10:48 pm

I should have added: a few days of discomfort of the fear uncertainty and doubt variety is in my opinion about the right degree of punishment.

54

Name 09.23.16 at 11:04 pm

#19 For all I’ve read, it’s the protesters who are being violent.
all 100%… including those in “run them down” range of Reynolds’ disciples?
did you read of any attacking vehicles?

55

Rich Puchalsky 09.23.16 at 11:33 pm

CR: “It just seems like an absurd waste of time all around.”

This is the current mode of politics. Can’t do anything about actual problems, but can sort of maybe censure somebody unless they’re too high up on the food chain.

As has already been pointed out in this thread, freedom of speech was fine until people used it to oppose the draft, after which use of freedom of speech became the lever which was used to destroy the Wobblies and a whole lot of other left organizations of the early 20th century. There is no way to censure Reynolds and not make it marginally worse for everyone else, so what remains is laughing at him and making jokes about heads on sticks, which is a lot more fun anyways.

56

John Quiggin 09.24.16 at 12:02 am

BW “a world in which ordinary people are routinely fired or denied employment on the basis of drug tests and credit reports. “

Important to remember that the USA is not the world. These practices would be illegal in most developed countries.

57

Alan White 09.24.16 at 12:12 am

My terminal degree is from UTK, which already has enough of a reputation as a mere”jock school” (as someone I once met at a conference remarked when I mentioned my degree was from there) to justify issuing chips as well as hoods to be placed on grads’ shoulders, and has had to suffer the added indignity of Reynolds’ use of its name in his by-line for far too long. The single biggest public service Twitter has provided is a near-instantaneous forum for outing celebri -pundits’ biases as they self-importantly talk to themselves and by-the-by a faceless audience. So Reynolds is likely deeply racist. Not a shock, but pretty clearly a confirmation. No news forum should give him a voice unless doing so is just as a profitable shill for the like-minded. Oops–I guess that explains USA Today.

But the OP is right. His views are despicable. But he needs to be evaluated as an academic only by his professional conduct–not his questionable use of free speech. It’s at least logically possible that a KKK member could also be an adequate professor.

58

Matt Weiner 09.24.16 at 12:29 am

Omega Centauri @48: I’m on the side on Lee, Paul and Matt. This certainly sounds to me like incitement , or something awfully close to incitement. And from someone whose job as an academic lawyer entails creating or enhancing respect for the law from his students. So at least a preliminary investigation seems warranted.

To be clear, I don’t necessarily think that there should be an investigation–I was just trying to push back against the poster who said that Reynolds was merely advocating self-defense by pointing out that he was indeed advocating murder. Whatever the academic freedom issues involved, we need to be clear that Reynolds’s post was morally reprehensible; the question is whether morally reprehensible posts deserve academic sanction. Also, since “incitement” has a particular legal meaning, I really should have said “advocating.”

As for whether morally reprehensible posts deserve academic sanction… I don’t think they do, but I’m tempted to say that Reynolds should get as much protection as Steven Salaita got, because concepts of academic freedom/free speech rights that only protect conservatives aren’t any use. But I guess those rights do protect non-conservatives some of the time, so I should resist the temptation. (I don’t think there’s even a colorable case that he shouldn’t be fired from USA Today though. If your job is writing opinion pieces for a paper, then your tweeted opinions do reflect on your job.)

59

Collin Street 09.24.16 at 12:36 am

But I guess those rights do protect non-conservatives some of the time, so I should resist the temptation.

You could just be silent when it’s a conservative in trouble. If you speak up for both sides and person B speaks up only for people they agree with, you wind up with more voices on one side than the other, which isn’t what you want if you want equitable treatment.

“I thought what I wanted to say had already been said” is an adequate response if pressed.

60

nick s 09.24.16 at 12:38 am

Reynolds isn’t, as far as I can tell, acting as a scholar when he blogs or tweets

It makes you wonder what he actually does for the $160k.

The broader point is the flipside to bruce wilder’s note — that the academic job projects a legitimacy for non-academic work that Reynolds clearly lacks. The bio should be “Glenn Harlan Reynolds is some random dude who thinks it’s cool to wear a ‘Celebrate Diversity’ shirt with guns on it.”

61

kidneystones 09.24.16 at 12:40 am

@40 is exactly right. Reynolds is a very long way from contrite. The original tweet is, indeed, provocative and can be seen by anyone familiar with the full range of political discourse on the web.

@52 This is very poor from you Alan. Reynolds’ publications and standing on his side of the political divide is at least as solid many other libertarian/conservative academics. Whatever your own biases against Reynolds, his long history of arguing for limits on government authority in general and surveillance and police powers, in particular, is at least equal to that of many civil libertarians on the left.

You do little to enhance the reputation of your alma mater by making a huge leap to declaring ‘Reynolds is likely deeply racist.’ Phil Ruston taught at my undergraduate university while I was there. It doesn’t get much worse than that. But I’m not about to allow that clown to define the school when many other better scholars also taught and worked.

Henry is right. Reynolds is a mendacious hypocrite. That just makes him one of a great many. The difference is he’s a prolific blogger with a wide following.

62

Alan White 09.24.16 at 1:06 am

kidneystones–

“But I’m not about to allow that clown to define the school when [sic?] many other better scholars also taught and worked.”

My point exactly. “Run them down.” Three words can speak volumes, and Reynolds’ weak back-tracking statements reveal as much as anything that his three words meant more than what he wished to imply with all his 500k tweets combined. Your reply to @40 seems to concede as much.

Reynolds is an embarrassment to UT. I wish he would resign and move on to preside over Trump University.

63

kidneystones 09.24.16 at 1:46 am

@57 I make no such concession.

The responsibility to bury Reynolds, if that is a truly worthwhile goal, lies entirely with his peers at the UT who are are producing the scholarship to balance that account. I’m not aware of any campaign by his peers at UT to have Reynolds excommunicated.

You could start one!

64

Alan White 09.24.16 at 1:54 am

Hah ks! I’d like to buy you a drink some time.

65

kidneystones 09.24.16 at 2:08 am

Cheers, Alan.

Nothing, btw, is more likely to motivate Reynolds’ readers, many of whom do not support Trump, to get out the vote and for teh Donald.

Reynolds is holding his nose, as he did with Romney, McCain, and Bush. Support for Trump in the instapundit world is lukewarm, at best, and the tone of the blog is almost NeverTrump.

You should get out more.

66

Alan White 09.24.16 at 2:30 am

ks: Cruz’s endorsement of Trump today oddly depressed me. I thought of cummings’ line “there is some shit i will not eat”–which I respect. Oh well.

Apologies to Henry for meandering.

67

kidneystones 09.24.16 at 2:40 am

The path for Hillary would be easier, imho, if Cruz were the nominee. He’s nuts and may yet get his run, tho’ I doubt it.

Nap time

68

Mike Schilling 09.24.16 at 3:31 am

I want one of these jobs where I can’t be fired no matter how much I embarrass my employer.

69

stevenjohnson 09.24.16 at 4:02 am

The workplace principle as presented here seems to suggest that if Glenn Reynolds took a courtroom case and suborned perjury, it should be deemed irrelevant to his work as a professor of law. Or, if another member of the legal community, a police chief, for instance, had tweeted the same after hours, too, it should be deemed irrelevant to his day time job as an enforcer of law.

Given the context of the events, this was in fact analogous to crying “Fire!” in a crowded theater. If that dude had tweeted about a head on a stick when there was a mob at the other man’s door, it might be analogous to this situation. Did he? At any rate, the only question about the university is whether it should be content to follow the police’ lead in regarding this as an acceptable thing in a crisis.

If Reynolds had tweeted that protesters should take out some cops, would there have been an original post?

70

Collin Street 09.24.16 at 4:09 am

Also: making public calls for racialised violence suggests the possibility of sufficient actualised bigotry to render a person unsuitable for the role of educating a general [say, not racially selected] audience. Certainly enough to trigger an investigation into whether this is the case, I’d think, and if the investigation did find that the man was letting his bigotry creep over into his official duties[1], then you’d really have to give serious thought to the question, “should he be given the arse?”.

[1] Remember, bigots think that bigotry is OK. Definitionally. They might — or might not — appreciate that expressing their bigotry in public might lead to negative consequences, but that’s not as effective a guard against doing racist / etc things as, you know, not thinking that bigotry is really OK. So it’s [predictably] rare to find bigots who manage to genuinely keep it private: evidence “this person is a bigot” doesn’t inescapably lead to the conclusion, “this person is unsuitable for working in [say] a supervisory capacity”, but… yeah.

71

kidneystones 09.24.16 at 5:08 am

@65 “Making calls for racialised violence” More expert analysis from the resident dunce.

Let me guess, you wrote the comment without actually looking at the, you know, evidence as in the actual tweet, which is actually Reynold’s response to a WBTV report from KeithLamontScott.

If, on the other hand you actually took the time to read the tweet before deeming it a ‘call for racialized violence, ‘ congratulations! That would be so not you.

Either way, you’re got some heavy lifting to do to find anything remotely ‘racial’ in the tweet. Unless, of course, you asserting that all protesters are either black, or people of color.

Not one of the BLM protesters who shut down Heathrow was.

Reynolds likes nothing so much as ordinary citizens, (that would be all) taking ‘personal responsibility’ for their own safety. Thus, Reynolds argues his ‘perfect modern couple’ would be same-sex, pot-smoking partners, armed to the teeth.

Reynolds is one step away (maybe less) from being a law professor/blogger cum survivalist. All races, creeds, genders are encouraged to build their own bunkers and prepare for the end.

Don’t you people know anything?

72

Ravi 09.24.16 at 5:09 am

John Quiggin @51: Speaking as an American who has lived in other countries, I’m pretty much convinced the qualifier “most” is unnecessary.

73

Manta 09.24.16 at 8:54 am

I see various kind of rights involved in this kind of situation
1) The right of R. to say whatever he wants in his free time (as long as he makes clear he’s not talking for his employer, and it’s not some special situation like lawyer, doctor, etc.)
2) The right of random guy A to read R. opinion, without having to worry that it is really the opinion of his employer (assuming honesty on the part of R. : heh!)
3) The right of R.’s employer not to have to police what R. say in his free time

On the other side, we have
4) The right of random guy B. NOT to read R. opinion
5) The right of the employer to dictate what R. in public (and maybe also in private)

How to concile best these rights? It’s quite easy for me: I don’t give a damn about 5) (i.e., an employer that wants 5) can go f* himself); about 4) it’s also very easy: B simply needs not to read R. tweets or opinion eds or blogs (I managed quite well till now, so I am pretty sure B. can do the same).
So it remains only to protect the rights 1), 2), and 3).

74

Manta 09.24.16 at 9:00 am

@64 stevenjohnson

“Given the context of the events, this was in fact analogous to crying “Fire!” in a crowded theater. “
Protip: the legal analysis of anyone who references that Holmes line is not to be taken seriously.
https://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/

75

Atrios 09.24.16 at 12:55 pm

Not sure why you’re disturbed? I’m in the “university shouldn’t discipline” him camp (caveat that I am not aware of all of applicable university faculty policies, but I don’t think the policies should be such that he would be disciplined in any case), but that’s not the same as “university shouldn’t investigate issue.”

76

b9n10nt 09.24.16 at 2:18 pm

@ 70

A) There is no relevant Univerity policy that applies here and ‘investigation” does not mean “we need to figure out what happened” because all that happened was a tweet. Therefore “investigation” represents the legthening the shadow of illegitimate authority over another’s speech.

B) “investigation” means “we have a relevant policy that applies to situations like this and want to review the policy and its historical enforement and apply it to this tweet” and therefore the policy itself represents illegitimate authority over another’s speech.

So either way, disturbing. If you (University) want to “investigate” (basically, talk to your admin. colleagues about it in a professional capacity) without a chilling effect, do so privately.

77

Layman 09.24.16 at 2:30 pm

Again, I wonder, is there anything ostensibly non-work-related Reynolds (or any academic) could say that would warrant an ‘investigation’ or ‘discipline’?

78

Manta 09.24.16 at 3:15 pm

You have the relevant policy quoted @2, Layman.
Moreover, the university is bound by the 1st amendment, if I am not mistaken.

79

Manta 09.24.16 at 3:28 pm

80

Layman 09.24.16 at 3:30 pm

Manta, that policy leaves room for some notion of speech which is too egregious to be tolerated. For example:

“…their special position in the community imposes special obligations…”

“…they should remember that the public may judge their profession and their institution by their utterances…”

“…they…should exercise appropriate restraint…[and]…should show respect for the opinions of others…”

“…a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness for his or her position…”

I’m asking what would constitute such speech, in the minds of those who say Reynolds’ speech doesn’t rise to that level.

81

Pusheen 09.24.16 at 3:36 pm

Pretend you are a black UTK law student. You face the choice of either skipping a key elective class or taking the class from Glenn Reynolds, a man who has twice targeted black protestors in the national media: first by dog-whistling that black activists shouldn’t vote* and then tweeting in favor of their deaths.

Care to guess how many black students want to place their dignity and GPA in the hands of a man whose public statements have now sparked two race-related controversies?

Whatever the truth of his attitudes, Professor Reynolds’ public statements have led him to be perceived as hostile to black and female students (“men’s rights” is one of his pet issues)**. After the Mizzou article, black students refused to take his class. I think we can all agree that his nationally-known (apparent) advocacy in favor of killing black protestors will not vary this trend.

This isn’t the typical academic free speech debacle. The controversy in question doesn’t revolve around a professor’s arguable—or even nonsensical—political positions or partisan academic work. Without qualification, Reynolds advocated running over black protestors. Once the statement’s inappropriate nature was explained to him (because apparently its offensive content was invisible to its author) he refused to disown it, issuing a non-apology only when his income and media influence were threatened.
Can we really place the onus on black students, requiring them to take this man’s class, suffer a racially motivated harm, and then prove it, before Reynold’s can be disciplined?

I applaud your willingness to speak out on behalf of someone whom you genuinely dislike and I dislike the idea of Reynolds getting fired. But I think discipline is in order, even if it takes the form of relegating him to niche, specialty interest courses.
* Article here: http://www.usatoday.com/story/opinion/2015/11/11/raise-voting-age-25-yale-missouri-protests-political-debate-column/75577468/. While not as nationally recognized, this was a huge controversy on campus.
** https://pjmedia.com/instapundit/?s=teach+women+not+to+rape Delightful.

82

ZM 09.24.16 at 3:40 pm

Corey Robin,

” a law professor’s tweet suggesting that motorists “run down” protesters blocking traffic following a fatal police shooting in Charlotte, N.C.”

“means that employers can threaten your job to discipline you for things they don’t like, including punishing activities that have nothing to do with one’s employment. I don’t like Reynolds being investigated for a tweet that doesn’t have anything obvious to do with his employment as a law professor. If he were to be punished for it, it would be seriously problematic.”

I think the Tweet was probably not meant seriously, but a university most likely doesn’t want its law professors publishing Tweets telling people to break the law.

If his job is a law professor, telling people to break the law is kind of related to his job…

If he was a practicing lawyer he couldn’t tell anyone to break the law or he would be disbarred, I already looked up rules about this in California. Its something that can get practicing lawyers struck off.

83

Manta 09.24.16 at 3:46 pm

Here is the discussion of law in Guth’s case:
https://popehat.com/2013/09/20/university-of-kansas-professor-david-guth-suspended-for-repulsive-anti-nra-tweet/

Under applicable law — sometimes called the Pickering/Connick balancing test — the applicable questions are (in over-simplified form) (1) was this a statement on a subject of public interest (in which case it is entitled to protection), and (2) how does University of Kansas’ need to maintain discipline and harmony balance with Guth’s interest in free speech. As I suggested recently, recent caselaw establishes that the interest in free expression is particularly powerful in the college environment.
Guth’s tweet is on an issue of public concern. It’s made by a professor, in a context where the interest in free expression is at its maximum… The analysis might possibly be different if Guth singled out students or colleagues at his university, or directed such speech at a controversy at his university, or said something exposing KU to significant litigation risks. Then, at least, KU might argue that it is disruptive of local harmony or discipline. But this seems to be disgusting speech on a straightforward national political dispute … Unless KU can make a very strong showing that this impedes discipline and harmony in an environment where unbalanced political rhetoric is commonplace, it shouldn’t be able to discipline him.

84

Manta 09.24.16 at 3:47 pm

ZM
so a law professor cannot advocate civil disobedience?

85

RNB 09.24.16 at 3:47 pm

You know there could be a little more attention to what it’s like to be a tuition-paying black student at a University that has bestowed honors on a person who has suggested that once a white person feels threatened by black protestors temporarily blocking a road, he has the right to drive through them!

From the link in the OP it seems that this honored law professor has implied that it would be wrong to deprive any white person of being being able to do anything to minimize the risk of any harm that he imagines a black person may inflict on him even if this risk-reduction maneuver ends in the loss of a black life. All white people can now claim to be suffering Reginald Denny’s post-traumatic syndrome and plow down black people as they see fit, according to Reynolds.

This thread could stand just a bit more attention to what it might be like to be a black student at a campus where a law professor honored by the University has said that a white person who simply imagines himself threatened by a black protestor can legally and morally kill that black person with impunity.

Otherwise, Crooked Timber will not beat back its hard-earned reputation in minority communities for being a pride parade for the ethically impaired, the compassionately deficient, and the altruistically atrophied.

Are we really supposed to be really upset that this University is listlessly going through some fairly cheap steps obviously not to fire this most honored faculty member but really to signal to the tuition-paying black students that the University will make a bit uncomfortable a Prof who has used the elevated status it has given him to put his imprimatur on open-hunting season on black people.

This review by the University will probably be nothing more than the collegial guidance to this monster that even the 1st Amendment lawyers agree the UT Administration has a right, if not a duty, to provide.

Obviously the University is trying to help just a bit the black students who are vomiting out of existential sickness on their way to class by putting some distance between itself and Reynolds.

But of course, says the Crooked Timber “brain trust”, let’s not have the University carry out this symbolic review to make the black students feel a bit safer being there. And in fact the brain trust here makes no alternative recommendations to help black students weather this storm and ensure that their speech is not effectively chilled due to suffering a loss of confidence in their bodily integrity, given how a respected Prof’s words are steeling the confidence of the white supremacists at this particular campus. There is by the way a rather robust history of white supremacy in the Volunteer State.

And then we are told that it would be a terrible thing if USA Today, seeing that the toxic stuff Reynolds has doubtless written and will write can no longer have plausible deniability built into it, decides that it can no longer feature his writing.

Well obviously it’s a good thing if USA Today terminates his column. And as TM has tried to explain people here Reynolds’ rights have not thereby been violated.

86

stevenjohnson 09.24.16 at 3:53 pm

Manta @69 Your “protip” in this case is like a legal analysis that cites Godwin’s Law. It’s not a thing at all, just a rhetorical trope aiming to dismiss any discussion, especially if the analogy is pertinent. In social media terms, a law professor was on the scene advocating illegal violence in a volatile situation. Thus, however Holmes used or misused his analogy, it is not just appropriate, but inescapable. The dubious arguments are those that try to evade the key issue to ramble on about freedom of speech, academic freedom or workplace principles.

My guess is that the university will find no cause for action. The whole thing is about not wanting to associate themselves with open enmity to the people who oppose police shootings. Things like the OP will cover for Reynolds’ continued invaluable service in academia, which will associate the university with covert enmity to the people’s reprehensible distaste for police shootings.

87

ZM 09.24.16 at 3:59 pm

“so a law professor cannot advocate civil disobedience?”

I don’t think advocating running over protestors is civil disobedience ?!?!

88

Manta 09.24.16 at 4:00 pm

steven, I was only trying convey in a polite way that you were saying a lot of bullshit, and that it was easy to spot by the use of a discredited analogy.
The OP covers quite well the key issue: so your claim that people are “evading the key issue” is just more bullshit.

89

Manta 09.24.16 at 4:02 pm

ZM. that’s what you were claiming, not me:
“doesn’t want its law professors publishing Tweets telling people to BREAK THE LAW. If his job is a law professor, telling people to BREAK THE LAW is kind of related to his job…
If he was a practicing lawyer he couldn’t tell anyone to BREAK THE LAW or he would be disbarred, I already looked up rules about this in California. Its something that can get practicing lawyers struck off.”

90

Procopius 09.24.16 at 4:10 pm

In this case, Reynolds has apologized for his tweet, which ought to be taken into account

He may have issued an actual apology. I haven’t been interested in following the case. His original reaction was to say, “No, no, you misunderstood me. Probably I should have said, ‘Drive on.'” In fact the latest comments from him that I bothered reading indicated that he had no idea that he had said anything at all wrong, much less apologized for it. He didn’t even admit to knowing that the tweet that causes his brief suspension by Twitter was the one where he said, “… run them down.” Isn’t he the guy sometimes referred to as “Instaputz?”

91

b9n10nt 09.24.16 at 4:18 pm

@75

An example: 9am Glenn’ Reynolds’ writes:

Guys lets meet at 7:30 on the corner of Oak and Main. We’ll form a caravan and head to Ash and Grand St. where the protesters have been gathering. Let’s run over some protesters! Greg…u know those antlers u have on the front of your Ford? Bring those.”

At 1:30 pm developments ensue and the protests don’t occur. DA etc…decide not to press charges for incitement to violence. But University still fires G’ R’ under the policy u cite.

92

Layman 09.24.16 at 4:33 pm

Ah. So if Reynolds engaged in a conspiracy to commit a felony, that would be grounds for discipline. That’s good; but is there nothing less than that? Once a university hires someone, they’re stuck with the association with and effective sponsorship of that person forever, short of an actual felony? Does this protection extend to all university employees?

I’m thinking of someone like John Yoo. Does Berkeley employ him because they want to, or because they don’t have any choice in the matter?

93

ZM 09.24.16 at 4:39 pm

Manta,

Yes, but civil disobedience is a different category than telling people to run over protestors – civil disobedience is to encourage law reform. The university would have to take that into consideration, but telling people to run over protestors is pretty different and just advocating plain criminality (although I don’t think it was serious as far as I can tell)

94

Jonathan H. Adler 09.24.16 at 4:59 pm

Good for you and your willingness to place principle above your antipathy for Glenn. If only more folks (academics and otherwise) — on all sides of the political spectrum — aspired to such principled consistency.

JHA

95

Manta 09.24.16 at 5:05 pm

ZM, I am trying to say that your reasoning applied consistently would imply that a law professor could get disciplined for encouraging people (in his free time) to do civil disobedience.

From what you wrote, it seems that that is exactly the case for lawyers (that is a lawyer that advocates civil disobedience could get disbarred): do you confirm?

96

Glen Tomkins 09.24.16 at 5:24 pm

I think this argument takes professional courtesy a bit far.

As a practical matter, no one has a right to bring shame and disgrace on their employer. Had Reynolds made public comments to the effect that he found a six year old a suitable candidate for sexual advances, he’ld be out of a job whether that job was teaching law at a public university or clerking at a 7-11. I don’t think racism is any less shameful or disgraceful than pedophilia. That Reynolds has only been suspended would seem to indicate that his employers, accurately reflecting the society we live in, unfortunately have a different rank ordering of what is shameful and disgraceful.

The argument as I understand it is that this is the problem, that employers have discretion to interpose their ideas of what is shameful and disgraceful. Let them do this against racism and pedophilia, and next thing you know they’re blacklisting socialists. The enemy here is discretion, it can’t trusted because it has so often gone wrong. So the argument is that we can or should have this formal protection, that employers wishing to take action against an employee need to have evidence of actions that interfere with job performance, rather than just expressions or other actions that, however shameful and disgraceful under someone or other’s worldview, have no bearing on job performance.

Perhaps for some jobs this imagined system would work. As long as 7-11 had a rigidly enforced policy against letting unattended six-year olds in their stores, and our pedophile clerk’s expressed proclivities did not extend to any higher age group that would be allowed in the stores unattended, sure, let’s imagine a perfect society where the clerk’s private inclinations, however abhorrent most of us find them, are kept separate from his right to work at 7-11s. In this utopia, perhaps even socialists would be allowed to clerk at 7-11s, as long as there was some way to ensure against the danger that they would chat up class warfare against the owners with the customers. Though perhaps, and I think this is part of the point being argued, we all are to understand that 7-11 clerks’ ideas about how society is to be organized enjoy the same status as random dorm room BS sessions, and aren’t an actual threat to the foundations of our capitalist society. It actually does make some sense to say that, since people go to 7-11s to buy Lotto tickets and donuts, not to be instructed on how society should be organized

People go to law school to be instructed on how society should be organized, exactly that. The fact that a professor of law publically expresses racist views is not some peripheral issue that has nothing to do with his job performance. To let such a person continue to enjoy the status of professor of the law is to announce to the world that racism, the idea that some of us are incapable of being fully human, is at least one reasonable take on how society should be organized, an idea that is and should remain foundational in the law.

Just protecting black students at his law school from his racist actions would involve intrusions on his freedom to teach that you would probably find at least as abhorrent as his suspension. But even if his lectures were recorded and parsed by some Committee of Inquisition for racist implications with sufficient rigor to ensure that they don’t effect his job performance purely as it relates to not making black students unwelcome at that law school, even if his grading of black students’ work was examined and second-guessed with similar rigor, that doesn’t get at this problem — that letting an avowed racist be a law professor, an avowed racist who most definitely does not believe his racist ideas are a private matter that should not affect what the law is, is a public endorsement of the idea that racism is not destructive.

That is the nub, isn’t it? That the idea that socialism is destructive of our society has been used, still is used — though obviously false — has been used to persecute socialists, so the answer is to keep all preconceived notions of what is destructive to society from being used to persecute anybody. Society is to be denied discretion to sort out the destructive ideas from the correct ideas, it is not to be allowed to favor any ideas when it comes to teaching what is lawful from what is not, so long as the teacher does not break the law. Professor Reynolds is just some schlub like the rest of us, and his racist ideas are as protected as those of the dorm room BSer because they are equally harmless.

Well, except that if you want a law degree, you have to please Professor Reynolds.

Henry, what you want to deny is that we have, or should have, a ruling class, of which you and Reynolds are members. You may wish that we had a classless society, but we don’t. As long as some of us have more power than 7-11 clerks, those rulers have to be held to a higher standard. It is objectively dangerous to society to allow racists to be members of the ruling class, in ways that it is not dangerous to allow 7-11 clerks to mouth off. Reynolds must be tossed from the ruling class. He doesn’t belong in any position of trust and honor in our society, not as a matter of abstract justice, but because to honor and trust him is to honor and trust racism, and that is fundamentally destructive.

Your job is to help toss Reynolds and his ilk from the ruling class. You may not like that job description. It speaks well of anyone to not particularly like being a ruler, especially to not liking the getting rid of the competition part of the job. But it is part of your job.

Reynolds and his side are very clear that part of their job is to toss people like you from the ruling class. They may not be right about a single other thing, but they’re right about that. Reynolds believes that socialism and racial equality are destructive ideas, so of course he strives, he should strive, to deny decent and reasonable people such as yourself any place in the power structure, and certainly any place that gives you the power to lead the young astray. You need to do the same, or you confuse people about you and our side in general upholding sound ideas vs destructive ideas. You can’t fight something with nothing, and to hold to the idea that a law professor must be allowed to go on presenting himself out as an expert on Right and Wrong, supported n that pretension by the state, is to deny that your differences with Reynolds are important to society, are anything but academic.

To be sure, what is primary in the effort to make the correct view of what is destructive to society prevail is to push the right ideas. Convince people that racism is destructive and socialism salutary and who cares if some crank at a low-tier law school is keeping his Confederate money safe in his attic. Unfortunately, man is a political animal, and place in a hierarchy counts in telling people what is up and what is down. An indispensable part of pushing the right ideas involves pushing people with the wrong ideas out of the hierarchy. Reynolds isn’t a crank, he’s a tenured professor.

Sorry if it rankles to make that distinction between a harmless crank and a tenured professor, but there it is. Stop extending professional courtesy to Reynolds. This isn’t some matter entre la noblesse de la robe. Beating his ideas is what’s most important, but if finally society is making some small movement towards disowning those ideas by suspending Reynolds, you should accept that as part of what those 7-11 clerks and other peasants need to protect our society against misrule. Disallow turnover in the ruling class by the relatively civilized means of academic suspensions, and even, horrors, withdrawal of tenure, and what means do you leave the masses to achieve turnover in the ruling class?

97

ZM 09.24.16 at 5:29 pm

Manta,

They might have to just give advice about what the laws are in relation to the civil disobedience etc I think.

“The ABA Model Rules of Professional Conduct address some of these questions directly in Model Rule 1.2: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

http://abaforlawstudents.com/2016/09/23/how-does-a-lawyer-handle-civil-disobedience/

98

Manta 09.24.16 at 6:01 pm

Glen Tomskins

“As a practical matter, no one has a right to bring shame and disgrace on their employer. “

As a practical matter, the freedom of professors to bring shame and disgrace on their employers (the university and the state) is quite important for everybody.
Without that freedom, for instance, prof. Paul Campos would not have been able to talk candidly about the state law schools.

99

Marc 09.24.16 at 6:11 pm

Glen T. apparently can’t imagine that the rules which he advocates could be applied to people whose politics that he agrees with too. An eye for an eye really does make the whole world blind.

100

Layman 09.24.16 at 6:24 pm

Marc: “…whose politics that he agrees with too.”

Running over protestors using your car is a form of politics?

101

Manta 09.24.16 at 6:34 pm

Layman, Reynolds run his car above someone? I wasn’t aware of this news.

102

bruce wilder 09.24.16 at 6:36 pm

Running over protestors using your car is a form of politics?

Saying someone else should as a rhetorical figure of speech certainly is. Actually doing it would be policy.

103

Manta 09.24.16 at 6:44 pm

The funny thing is that Glen T. seems to claim to be a socialist.
And, like any good socialist, he’s advocating giving less rights for employees in USA than they have now.

104

b9n10nt 09.24.16 at 6:44 pm

Layman @ 85

I’m thinking of someone like John Yoo. Does Berkeley employ him because they want to, or because they don’t have any choice in the matter?

I assume that Berkeley wants to (specifically, they do not want to suffer the ridicule of the political class) because Yoo specifically advocated acts to break the law, and thus Yoo’s speech acts are more similar to my hypothetical @84 that what Reynolds tweeted.

Glen Tomkins @ 89

I don’t think racism is any less shameful or disgraceful than pedophilia.

And if Glenn’ Reynolds’ had written:

Here are 5 steps that the landlord that owns the apartments on 3400 Main St. can take to discriminate against prospective black renters that won’t get the attention of the law…

that should be grounds for his dismissal.

105

stevenjohnson 09.24.16 at 6:56 pm

Manta @81 The analogy is pertinent, and prior misuse is entirely irrelevant, as are your opinions about BS. Your apparent belief that Reynolds would have had to be physically present on the streets to be in an analogous situation is absurd. Also, your courtesy is largely imaginary.

I believe the OP and everyone else supporting Reynolds would have noticed the relevance if Reynolds had tweeted something about throwing rocks at the cops. But I do not believe he would have won such vigorous support (and posters’ applause for supporting him,) if he had.

106

Manta 09.24.16 at 7:05 pm

Steven, of course the analogy is pertinent: it fits very well with the quality of your argument.
If R. committed a felony, there would be a police investigation and preferably a little thing called trial: then you could ask for his dismissal for breaking the law (independently of whether he broke it by writing on twitter or punching somebody or stealing money).

107

Rich Puchalsky 09.24.16 at 8:03 pm

Glen Reynolds has a dual role, which is what makes this confusing. As a professor, he’s supposed to be invisible and harmless. As a popular pundit and fringe member of the elite, he’s supposed to advocate for killing people.

I think that strict separation of his responsibilities could square this circle. As a professor, he won’t advocate killing people. As a pundit, he won’t be invisible and harmless. Everyone should be satisfied.

108

bruce wilder 09.24.16 at 8:09 pm

RP @ 100: I think that strict separation of his responsibilities could square this circle.

And, of course, should be acclaimed as a core liberal principle.

109

Manta 09.24.16 at 8:21 pm

I really don’t understand people who want the university to do the job of police and tribunals (see @14, @48, etc.) : *if* (and it’s a big if) R. tweet was breaking the law, it should be investigated: NOT by the university (or his employer), but by the police; and decided: NOT by his employer, but by a judge.

110

PGD 09.24.16 at 8:36 pm

I’m not sure how much difference this makes, but it’s questionable whether driving through protesters who block a highway is even illegal. It has happened several times recently and as far as I know felony charges have never been filed. Here’s a case in Minneapolis where the DA declined to file felony charges and instead they just charged him with misdemeanor traffic charges:

http://www.twincities.com/2015/03/23/st-paul-man-cited-after-driving-through-minneapolis-protesters/

this is probably where Reynold’s justification of saying “I didn’t mean go out of your way to hit people” is coming from.

111

Anononymous 09.24.16 at 8:58 pm

This is absurd.

An employer has every right to terminate employment: for any reason or no reason at all, as long as it does not pertain to race, gender etc.

We also have the right to terminate marriages, civil unions, or relationships for any reason. This is rightly regarded as progress for individual rights. No one should be trapped in a relationship that one does not want to be in, and that includes employer and employee relationships as well as marriages.

This is a constitutional right by the way: freedom of association requires, inherently, freedom to not associate to remain meaningful.

Practically speaking, this has to do with branding. Crooked timber did not give a flying f about Mozilla sacking their CEO for donating money to a political cause. You were right then, wrong now. Any action you take publicly as an employee of an institution that damages its brand is more than enough justification for termination. As it should be.

Live in the real world please.

There have to be non academics here that have hired and fired. I can’t be the only one.

112

Manta 09.24.16 at 9:02 pm

Anonymous, see John Quiggin @51
And the 1st amendment is also in the USA Constitution…

113

Anononymous 09.24.16 at 9:12 pm

Manta,

Your education has completely failed you. The first amendment concerns actions on the part of the government. Your wife can divorce you for supporting Trump or joining the KKK. The government cannot arrest you. Notice the difference?

Or is this an artifact of having a lovely, brilliant, and internationally diverse commentariat? Your understanding of the constitution is completely, 100% incorrect.

A company or institution has the right to terminate employment. In fact, it is illegal to not act in the fiduciary interest of the owners. You have your morality play backwards.

If an employee is making public comments that decrease your share price of hurt the owners’ interests, it is morally obligatory to fire them.

Cheers

114

Manta 09.24.16 at 9:16 pm

Anonymous, the employer of R. is the University of Tennessee, which is a public university, and as such it’s bound by the first amendment.
Really, aren’t you ashamed by a non-american knows your laws better than you? You are bringing shame on your ancestors; and your employer too, which should fire you.

115

Manta 09.24.16 at 9:19 pm

I’ll repost the analysis by an actual lawyer (and expert on 1st amendment issues):

https://popehat.com/2013/09/20/university-of-kansas-professor-david-guth-suspended-for-repulsive-anti-nra-tweet/
and
https://popehat.com/2013/09/05/ninth-circuit-clarifies-first-amendment-rights-of-public-university-professors/

Please read it, and tell me where in your opinion does not apply to this situation.

116

Rich Puchalsky 09.24.16 at 9:27 pm

PGD: “I’m not sure how much difference this makes, but it’s questionable whether driving through protesters who block a highway is even illegal.”

Wow, I didn’t know that — misdemeanors aren’t illegal! And if someone does something that sure looks illegal but the DA declines to charge for some reason, that means that the general kind of action that they did isn’t illegal. I learn so much by reading through CT threads.

The cited article mentions that the guy hit a 16 year old female protestor who suffered a minor injury to her leg. Now some people might think “That guy was lucky — he recklessly drove through a crowd of people, but didn’t kill anyone, and if he had he’d be facing manslaughter charges rather than a misdemeanor.” But other people think “Hey, driving through protestors isn’t illegal!”

117

Anononymous 09.24.16 at 9:28 pm

I was addressing the more generalized claims in the thread, of which there is a clear and wrong belief that companies do not have the right to terminate employment based on the actions of an employee outside of work. In fact, that is in the OP. And it is wrong.

As to your comments about shame, let’s not descend into ad hominem attacks. I certainly do not hope you are fired and I hold no ill will towards you whatsoever. We should be able to disagree without rancor or malice.

That being said, we agree that public jobs are bound by the first amendment. However, it is clear in the thread that more generalized claims were being made. And these claims are wrong.

118

Manta 09.24.16 at 9:29 pm

Rich “and if someone does something that sure looks illegal but the DA declines to charge for some reason, that means that the general kind of action that they did isn’t illegal. I learn so much by reading through CT threads.”

Yes, you learned that to decide if something is illegal or not it’s not in your power (or mine, or of a university committee), but of the legal system.

119

Manta 09.24.16 at 9:32 pm

Anonymous, if you read the OP more closely, you will see that it agrees with your claim that employers (usually, in USA) have the right to fire workers for what they write

“As Chris, Alex Gourevitch and Corey have argued at length, the lack of job security across much of the US means that employers can threaten your job to discipline you for things they don’t like, including punishing activities that have nothing to do with one’s employment.”

Now please reread the rest of the OP, and try to understand what it’s saying.

120

Anononymous 09.24.16 at 9:44 pm

Again,

The OP clearly makes a point that people should not be fired for things they do outside of work. Can we agree on this point? Let’s find out exactly where we diverge, instead of trading pointless insults.

The right of free association includes the right to terminate association. For whatever reason, only limited by specific antidiscrimination laws.

Yes, there is a different set of rules for public employment. However, the point of the OP is broader and makes a philosophical point. Do you disagree?

I think your more generalized disagreement lies in a philosophical stance. But I will not deign to put words in your mouth. For the record, freedom of association is a basic right afforded to us by the constitution. I agree wholeheartedly with its precepts.

If you have a problem with freedom of association, feel free to argue your view.

121

Manta 09.24.16 at 9:53 pm

Anonymous, it’s not my fault if you write
“I was addressing the more generalized claims in the thread, of which there is a clear and wrong belief that companies do not have the right to terminate employment based on the actions of an employee outside of work. In fact, that is in the OP.”
which, of course, is the OPPOSITE of what the thread claims.

“The OP clearly makes a point that people should not be fired for things they do outside of work. Can we agree on this point? ” Sure, now you have actually stated the position correctly.

Lumping work with marriage (as you did before) does not make much sense (except in the narrow legalistic sense): e.g., in most of the western countries you are free to divorce, but in many western countries you are NOT free to fire your workers on a whim. One right does not entail the other.

122

b9n10nt 09.24.16 at 9:54 pm

@ 113

Sounds like a defense of various illegal acts: employment & housing discrimination, etc…Wouldn’t these be legal if the right of association were absolute, as u appear to advocate?

123

Manta 09.24.16 at 9:56 pm

@115 “only limited by specific antidiscrimination laws.”

124

Anononymous 09.24.16 at 10:03 pm

The right to freely associate is concrete in the United States. I do not care what rights other countries give or do not give to their citizens. It makes no difference.

Clearly you disagree with freedom of association. Fine. The point of “lumping” different types of association together is to force a recognition of emotion vs. reason. Is there an emotional reason you support freedom of association in some circumstances compared to others? Obviously the answer is yes.

So far you’ve resorted to ad hominem attacks and questions of my character, and then stated I should be ashamed. I’ve responded cordially and politely. If there is any point of substance you would like to make I will answer it charitably.

Cheers

125

b9n10nt 09.24.16 at 10:07 pm

Oops, thx Manta.

But even so…why shouldn’t limiting freedom of association for anti-discrimination extend to discrimination against “opinions and statements made outside of work”?

Sure, in a future possible society, the cause of Liberty might flow the other way, but in today’s world the cause for freedom from workplace coercion trumps the “freedom” of an employer to protect her “brand”.

126

Manta 09.24.16 at 10:07 pm

Anonymous, I am trying to follow your exhortation “Live in the real world please”: and, no matter what you may believe, most of the real world is outside the USA.
The fact that you don’t care about the real world is not of a concern of mine.

“The point of “lumping” different types of association together is to force a recognition of emotion vs. reason” What does this sentence even mean?

127

Manta 09.24.16 at 10:11 pm

Ah, by the way, if you think writing “Live in the real world please.
There have to be non academics here that have hired and fired. I can’t be the only one.” and “Your education has completely failed you.” is compatible with ” I’ve responded cordially and politely”, then you are sorely mistaken.

If you intend to apologize, I can do the same and we can try to actually discuss cordially and politely; if not, I do enjoy smarm and sarcasm, so no problem with me.

128

Anononymous 09.24.16 at 10:21 pm

That’s fair.

I apologize for being brusque and dismissive in the beginning. It was uncharitable and did not add to the discussion.

As to the juxtaposition of marriage and other types of association, the point of the exercise is to step back and think: am I defending or attacking things based on mood affiliation or do I hold a principle based position?

Freedom of association is a principle based viewpoint. It includes all types of association.

Many people, if not all, hold points of view that are inherently contradictory. I am trying to determine the principle, if any, you are defending in saying the forming or dissolving of free associations of adults should be determined by law.

We can debate the principles, but I am having trouble identifying your framework.

Cheers

129

Manta 09.24.16 at 10:31 pm

Apology accepted, and I also apologize for being aggressive.

My framework is that trying to reason by logic from first principles is doomed to fail, for two different reasons
1) logic reasoning requires absolute precision and lack of ambiguity: this precision is probably not afforded by human language, and surely is not present in the USA constitution
2) even a “tiny” contradiction will destroy the whole edifice (“ex falso quodlibet”).

Moreover, I am not from USA, so, while I admire some of the principles in the USA constitution, saying things “freedom of association is in the USA constitution” is not a particularly convincing argument with me.

Finally, I am giving examples from outside USA because I want to show that (some of) the principle exposed in the OP can work in practice.
For instance, one does not need to assume “freedom of association” to decide that marrying whoever ones want is a right.

130

Omega Centauri 09.24.16 at 10:41 pm

With apologies to Clausewitz
“Running over protesters using your car is nothing more than the continuation
of politics by other means?”

In reality Glenn problem suffered from a slip of the digits. “Running over” is something very different from carefully pushing your way through the crowd (still illegal but in a completely different class of offense).

In reality the law can be rather strict. I worked at Los Alamos in the early eighties, and we had
protesters block the roads. I knew one guy who got arrested for illegally trying to bypass the blockage by driving outside of the legal right of way. Now, he wasn’t putting any protesters at risk, but the police felt they had to apprehend him anyway. And this was in a country in which at least eighty percent of employment was at the lab,so and as far as protesters were concerned the county judge was effectively a hangin judge.

131

Manta 09.24.16 at 10:42 pm

Extending @118, why anti-discrimination laws should include only “sex, age, etc.” and not political opinions?

I would even argue that freedom to express one political opinions is quite fundamental to the a true democracy.
(If I am not mistaken, this is actually the case in a few countries, where you cannot fire someone for being of a member of a party or similar: can other people confirm?)

132

Anononymous 09.24.16 at 11:19 pm

I would say that the restrictions on freedom of association inherent in antidiscrimination laws is an issue of groups who are/were regularly denied rights afforded to them in the constitution. It is an attempt at remedying horrific and unjustified laws that were used to marginalize and disenfranchise groups. Personally, I do think they are unconstitutional under the bill of rights but are potentially justifiable in extremis. Whether that still holds true today is debatable.

However, if we are to leave the realm of principles and rights, and enter the world of consequences and actions for a moment…

The issue is I can have an engineer from mainland China become famous on Twitter or Weibo for advocating a violent reuinification of Taiwan. This damages our operations and dealings with our clients and JV partners. Political speech can cause harm if it turns away clients or ruins a relationship with our JV partners. I have the right and responsibility to fire him, as a manager.

We honestly don’t care about privately held opinions. It is when they interfere with our fiduciary duty that it becomes an issue. An employee expressing opinions publically that could be attributable in part to our firm is bad for business. We want our firm to be non political and neutral.

We are not supported by tax dollars. We need our clients to maintain profitability. You could turn this on its head: what right does one employee have to jeopardize everyone else’s jobs and income? It’s not as if we run around firing good employees for voting one way or the other. It’s only if it becomes a business issue. The best method for not turning away clients is to be neutral.

Cheers

133

Collin Street 09.24.16 at 11:28 pm

@manta:

If you intend to apologize, I can do the same

Apologies don’t work that way. I mean, you’ve probably spent your entire life thinking that, for whatever reason, but they don’t.

An apology is when you’ve done something wrong, you’ve accepted that you’ve done something wrong, and you’re admitting that you’re sad about it. “I did this and I’m sorry”. I did this and I am “sorry”, saddened. Because it’s entirely based on your own emotional response it can’t be conditional or dependent on others’ actions; somebody saying they did something else wrong won’t actually change your emotional responses to your own actions, will it?

Now, you said “say” sorry, not “be” sorry, and the two are different. But if you are sorry but you’re not saying sorry… well, you’re misrepresenting something [your internal emotional state] to gain rhetorical advantage in [this honestly pretty petty] debate, no? “Lying to preserve conflict unless the conflict can be resolved on your terms with you on top” is not a misrepresentation, and needless to say that’s not very nice at all.

So yeah. Conditional apology -> worse than bullshit. If you’re wrong, adult up and admit it. If you were rude, adult up and admit it. Unconditionally, because conditionality is just crap. Self-defeating, too, but if you care about that then, again, it’s not actually sorrow you’re feeling.

[stages of grief go denial then bargaining, right? Same thing.]

134

b9n10nt 09.24.16 at 11:32 pm

@125

Not a good argument.

In your telling: 1) Concepts of “harm” and “need” are xefined in terms of economic profitability of an institution, not on the freedom and welfare of people within and beyond it. 2) Were your business to operate under a law banning such firings, you are not only relieved of the unnecessary burden of responsibility over your hire’s job status (as a consequence of non-work related speech), you are also cooperating with a legal regime that expands her right of speech and association.

Everyone wins, right?

135

Anononymous 09.24.16 at 11:42 pm

B9,

I don’t follow. If we are not profitable, we do not exist. If an employee offends a JV partner, then yes we will cut him loose. The welfare of our employees is predicated on the fact that we are profitable. Would we hire a racist xenophobe to oversee our foreign ops? Should we have to?

If we operate under a legal regime that says we have to keep employing people that offend our partners, then that is a legal regime that makes little sense.

If a local restaurant has a waiter that is racist, sexist, and xenophobic should the restaurant be forced to keep him? That’s just terrible customer relationship management.

I’ll tell you what that would actually accomplish: we would conduct an insanely thorough background check and anyone who held strong political opinions would not be hired in the first place.

This is already a somewhat widespread practice. Put women’s feminist league or black panther member on your resume and see if you get hired. We don’t need to make this even worse.

136

Collin Street 09.25.16 at 12:03 am

If we are not profitable, we do not exist.

Eh. You — the company — exist as a creation of the community-through-the-state, essentially on the state’s sufferance and for the state’s [and in theory the community’s] purposes. If you don’t do what the community needs you shouldn’t exist, and this is logically — and legally — prior to your profit motive.

There are innumerable restrictions on the things you can do that impact your profitability. Unless you’re an anarchist you can’t object a-priori, and all that being an anarchist would change is that your awareness of your existence-on-community-sufferance would be more front-and-centre.

If you want to argue against specific restrictions, feel free. Generalised complaints, equally applicable to “the state won’t let us put strychnine and cocaine into babyfood”, really don’t warrant a response.

137

Anononymous 09.25.16 at 12:12 am

This sounds familiar.

Something about all within the state, nothing outside the state…..

Yes, if you believe everyone and everything is community property belonging to the federal government then it does indeed have unlimited sovereignty over all aspects of life.

Or, just for the thrill of it, we could say there’s a spectrum from anarchism to communism. And where one lies on that spectrum informs their opinions about rights vis a vis man and the state.

138

Eli Rabett 09.25.16 at 12:30 am

First, Reynolds should be disciplined by the TN Bar. He clearly advocated murder. Second, as Eli recalls, the right including Reynolds was quite happy to draw conclusions about the truck attack in Nice on Bastille Day. That alone should condemn Reynolds

139

b9n10nt 09.25.16 at 6:14 am

@ 128

RE: racist waiter: I agree that where an employee’s speech (in their strictly-construed function as an employee) has predictable, immediate, and direct impacts on the business, they should be liable to employer discipline. Outside of that…we as a polity should support the principle of freedom of speech and freedom of association above any potential “harm” to and “need” of a particular institution.

Yes, if a citizenry were to face material calamity unless it win the favor of institutions beyond its control, the cause of survival would understandably take precedence over these principles. Servants do not have the luxury of offending their masters. But this is not the situation that presents itself. No person’s welfare is dependent upon any particular firm being profitable so long as safety nets and widespread, diverse opportunities for employment exist.

Furthermore, if employment law were to reflect the principles I advocate, then no hypothetical JV partner can post-facto fault your firm for obeying the law as it existed when the partnership was begun. It becomes a cost of doing business, a cost that is eminently bearable for the polity at large, if not -in an extreme case- one particular domestic firm. The polity does not serve the firm’s existence, but the reverse.

Freedom ain’t free, but the cost isn’t prohibitive.

140

Collin Street 09.25.16 at 8:21 am

@Anononymous

Your property rights were not created by you, and they were not created to serve you. They were created by others — by the forebearance of others — to serve the interests of those others. Communists, anarchists, liberals, carlist reactionaries, everybody, agrees on this point.

Now, there are important differences between these constructions. But the differences are in the nature and limits of the forebearance, the interests served, not in anything I wrote.

[and, really: picking “communist” and “anarchist” as end-points of a spectrum upon which we can place degree to which property rights serve the interest of the community strongly suggests your grasp of the fundamentals is pretty shaky]

141

Manta 09.25.16 at 8:28 am

@126 Collin Street

“If you intend to apologize, I can do the same
Apologies don’t work that way. “

And yet it seems that we are getting a more “civilized” debate.
Funny how reality sometimes differ from one’s ideas…

“Because it’s entirely based on your own emotional response…”
Says who?
But let’s drop the topic: I am not interested in your ideas on what is an apology and what is not: suffices to say that I am not in the least interested in your emotional response.

@127 b9n10nt hits the nail on the heads: the assumption (in USA) that a firm is responsible for its employees utterances is (one of the) causes the firm to HAVE to police the utterances of its employees: “We honestly don’t care about privately held opinions. It is when they interfere with our fiduciary duty that it becomes an issue.” .

The assumption is due to the fact that, by default, a firm CAN police its employees.
If you change the default, you free both the employees and the employers.
(Of course, there are employers and bosses that like to dictate every aspect of their workers life…).

142

Manta 09.25.16 at 9:00 am

“We honestly don’t care about privately held opinions. It is when they interfere with our fiduciary duty that it becomes an issue. An employee expressing opinions publically that could be attributable in part to our firm is bad for business. We want our firm to be non political and neutral.”

For instance, a firm doing business with the federal state could find convenient to fire its employees if in their garden they have a “vote Republican” sign.
(Or “vote Democratic” under Bush).

Anyway, if all firms strive to be non political and neutral, activists would get fired (don’t want to harm our business, after all: better to avoid angering some customers, donors, suppliers, and so on. Don’t rock the boat, don’t make noise, keep your head down…).

143

ZM 09.25.16 at 9:47 am

Saying to run over people isn’t a political comment, its not protected speech, its like calling “fire!” in a crowded building apart from I don’t think he was serious and no one ended up getting hurt.

144

Collin Street 09.25.16 at 10:55 am

Anyway, if all firms strive to be non political and neutral,

You write the words “non-political and neutral” as if they meant something. You should know better than that.

145

Manta 09.25.16 at 11:24 am

@136

I was quoting @125:
My point is that, even assuming arguendo his premise and framework, the consequences are still be pretty bad.

146

Collin Street 09.25.16 at 12:48 pm

> even assuming arguendo his premise and framework

I see. Sorry for snapping at you.

[but you probably shouldn’t do that: it’s obviously just another reiteration of “other people have politics, but I take the common-sense choice”, and leaving that untreated is like painting over a flaky dirty surface.]

147

krinein_ev 09.25.16 at 3:08 pm

“…activities that have nothing to do with one’s employment. “
It’s obvious that the OP has not gone to law school. As a 3L, I can say training in character, decorum, and professionalism is as much a part of the law school experience as learning anything in particular about the law. If I had a famous blog and posted what Reynolds posted over the weekend, I’m a 100% sure I’d be called into the Dean’s office on Monday. Having a famous law prof that violates the norms of civility and professionalism essential to training future lawyers undermines the law school’s core mission, and makes him unfit for employment.
Maybe this isn’t a firing offense, but it’s definitely at least worth a suspension.

148

Manta 09.25.16 at 7:13 pm

Heh, I agree with you: I would even argue that “neutral” politics is usually synonym with “I’m OK with the status quo” politics.

Moreover, in a context where companies donate huge amount of money to political campaigns, it’s a bit difficult to claim with a straight face that the typical company is in some sense are neutral.

149

Marco 09.25.16 at 10:20 pm

“Saying to run over people isn’t a political comment”.

This is a clearly wrong statement. Any known understanding of what “political” means includes the ideas and practices of a community over of what to do with public demonstrations of discontent by the people. Dr. Reynolds made a quite traditional statement on the subject, one with a long history even if it`s not common in today`s parlance.

May I suggest that if the acts of speech that should not be protected are both context-driven and dependent on the harm caused, which precludes the idea of curbing speech through political domination in the workplace, it is still absolutely rightful to question, within a community of teaching and learning, why does a law professor believes running over people is a moral civil action against political protesters, and how does that relate to his understanding of the law. This is not to say that he should be sacked for his tweet, or receive any kind of workplace disciplinary threat. It is just to remember that what he has said is related with his chosen profession, and thus his speech does not fit in the same category of, say, a shoemaker who organize political rallies for the KKK. He holds a position of power, and his speech is not to be dissociated from that position.

150

Chris G 09.26.16 at 12:01 am

I’m not sold. As it’s an incitement to lawless action, his tweet is not protected under the First Amendment. Not just is it not protected, he could be indicted on all sorts of charges for it. (It’s not just impolite to urge Person A to assault Person B with a deadly weapon, it’s also illegal to do so.) Not that I expect Reynolds to be indicted or that the odds of a conviction would be favorable if he were, but if I were a university administrator with sufficient authority I’d be inclined to stick him with a moral turpitude charge. The shoe fits. (Yeah, ‘moral turpitude’ had a different connotation a century ago but times change.)

151

Consumatopia 09.26.16 at 1:35 am

People keep mention non-USA law, so I have to ask–is there a jurisdiction where it would be illegal for a newspaper to fire a regular opinion columnist because that columnist expressed an offensive opinion outside his columns?

USA Today gave him that job because they wanted him to express his *own* opinion and attach his name to it (thus there is no distinction between his “on the job” and “off the job” opinions), and it should be entirely within their rights to decide they no longer want that opinion or that name.

If you passed a law requiring newspapers to keep columnists in situations like this, seems like the rational thing for a newspaper to do would be to fire all of its regular opinion columnists and only print freelance op-eds. In fact, that’s a general problem–if you set up any situation where there’s asymmetry between the criteria you’re allowed to use for hiring and the criteria for firing, then that’s an incentive for employers to switch from permanent employees to temporary ones. You shouldn’t be allowed to fire a janitor for their political views, but you *also* shouldn’t be allowed to refuse to hire the janitor for those views.

152

kidneystones 09.26.16 at 3:18 am

@ Chris G “I’m not sold.” OK. Have at least made some effort to become informed?

As in: did you read the entire deleted tweet before deciding you’re “not sold.”

Hard to pass judgment on something we’ve neither seen, nor read. But that isn’t stopping many here.

Guess that’s cause folks here are super extra, super-duper smart.

No hard evidence required!!

153

Anononymous 09.26.16 at 4:14 am

Re property rights. I do not know where you are going with this. I assume it is based on a philosophical framework, in which rights do not exist except at the tolerance of others. That might be true, although I have no idea what road that would go down.

Communism to anarchism spectrum would be my initial framework for rights of an individual vis a vis the state. If you’d like to use a different one I do not see how that alters the argument.

The fact is, as far as my experience informs me, that a business is by nature risk adverse concerning politics. Yes, there are idiotic exceptions: hobby lobby, Etc.

Staking out a political stance typically has large downside risk and little potential benefit.

If you make it impossible to fire employees for political speech, then we will respond by never hiring anyone that has a history of political speech. We will simply look into their background and not hire them.

If you put the burden of risky speech of employees on us, we will find a way around it. And mitigate our risk as much as the law allows. And a world where Democrat Club at University X is a disqualifier from employment is not a world I would like to live in.

I’m sure you could say this would be illegal also, but the truth is we do not and never will have to give reasons to not hire someone.

Cheers

PS: when we give money to politicians we don’t care about their speech. We give to the person we think will win. No one cares what side the politician is on. It’s about access and favors.

If it’s a toss up we will even give to both sides in the same election.

154

John Quiggin 09.26.16 at 7:18 am

People keep mention non-USA law, so I have to ask–is there a jurisdiction where it would be illegal for a newspaper to fire a regular opinion columnist because that columnist expressed an offensive opinion outside his columns?

Speaking as an Australian opinion columnist fired not so long ago, I can say that, if there is any such jurisdiction, I’m not aware of it. Of course, that doesn’t mean that you can’t criticise a newspaper for firing columnists, but I wouldn’t be inclined to criticise USA Today if they fired Reynolds

155

TM 09.26.16 at 8:22 am

50: “As has already been pointed out in this thread, freedom of speech was fine until people used it to oppose the draft”

Really? Sedition laws? It is my understanding that freedom of speech was always contested (and probably will always be).

“This is the current mode of politics.” Nonsense. What is true is that debates about (mostly imaginary) suppression of speech takes way too much space on CT. But CT is not representative of “the current mode of politics”.

156

Manta 09.26.16 at 9:32 am

Chris G @140
“I’m not sold. As it’s an incitement to lawless action, his tweet is not protected under the First Amendment. Not just is it not protected, he could be indicted on all sorts of charges for it”

OK, so after the indiction the university opens an investigation.

And now the punching line:
“Not that I expect Reynolds to be indicted “

157

TM 09.26.16 at 9:47 am

Manta 9 and 43, am I getting you right: You seem to argue that the so-called liberal media have an obligation to publish and disseminate the views of right-wing extremists and that refusing to do so amounts to a violation of free speech? I don’t know how else to make sense of your argument.

158

Manta 09.26.16 at 9:56 am

TM @147
USA Today knew quite well that R. was right wing when they hired him: it’s not as if had some kind of secret identity that was discovered as a surprise (mild-mannered liberal by day, extremist right-wing by night: he’s Reynolds-man!).
It didn’t have any obligation to hire him: and hence it did not have any “obligation to publish and disseminate the views of right-wing extremists”, and I am not arguing that.

159

Chris G 09.26.16 at 11:34 am

Manta@146:
Unless university rules require it, I wouldn’t wait on an indictment to start an investigation and I certainly wouldn’t make disciplinary action contingent upon a conviction. He’s a cancer. Excise him.

160

kidneystones 09.26.16 at 11:43 am

@149 When Trump wins and the Republicans control the House, and perhaps the Senate, all those pesky due process issues may well disappear. You’ll be happy then, I’m sure.

Good thing the public sides so strongly with the CT community, otherwise Reynolds might not be the only one in danger of losing a job to the mob.

161

Chris G 09.26.16 at 12:24 pm

Kidneystones@150:

I’m saying that U of T should hold Reynolds accountable using the administrative processes they have in place. What I’m hearing is that some would prefer he not be subject to investigation and punishment by the university because they could imagine a scenario where the results would not be to their liking. I acknowledge that concern but believe we’re better-served by holding people accountable to community rules. Giving people like Reynolds a pass enables misanthropic behavior. What he did went well beyond violating decorum. (He did not say “Change the law so that it’s legal to run over protesters.” That would be protected speech.) He urged people to engage in violence against their fellow citizens. He needs to be held to account. Suppose he had urged people to sexually assault protesters rather than run them over? Would you give him a pass on that too?

162

kidneystones 09.26.16 at 12:32 pm

151 I asked you before. Did you read the entire tweet? Yes/No. Because your earlier comments suggest you didn’t.

Your @149 suggests you don’t care what Trump tweeted, you just want him to be fired from his tenured position cause he’s a ‘cancer’ you want excised.

A little clarity on both points would be welcome.

163

TM 09.26.16 at 12:38 pm

148: “It didn’t have any obligation to hire him”

But they do have an obligation to continue publishing his columns forever? They can’t change their judgment regarding his suitability as a columnist? They can’t decide to replace him with somebody who is a better fit, or has more to say, or sells better?

What exactly is your point?

164

Rich Puchalsky 09.26.16 at 1:33 pm

Chris G: “(He did not say “Change the law so that it’s legal to run over protesters.” That would be protected speech.) He urged people to engage in violence against their fellow citizens.”

Ah, comedy.

It can’t be all take and no give from defenders of so-called free speech. I for one am willing to make people a deal. I’m fine with people being willing to punish expressions like Reynolds’ if every time someone suggests that we go to war — yes, even on “humanitarian” grounds — enforce a death penalty, build border defenses that will predictably kill people etc. that that person is also punished, especially if they are a politician in office or seeking office.

165

Manta 09.26.16 at 2:03 pm

Manta@146:
“Unless university rules require it, I wouldn’t wait on an indictment to start an investigation and I certainly wouldn’t make disciplinary action contingent upon a conviction”

You are claiming that he broke the law: the only valid method to establish if that is true or not is via the legal system.
And for good reasons: terrible as the judiciary may be, the alternatives that have been tried are quite worse; especially if the alternative is a university committee composed by amateurs.

TM@154

“They can’t change their judgment regarding his suitability as a columnist?”
Of course they can: yours is a non-sequitur; replace everywhere “columnist” with “burger-flipper” and you will quite easily see there are plenty of good reasons why a fast food joint may want/need to fire a worker, that don’t involve what the worker tweets in his spare time.

166

Manta 09.26.16 at 2:32 pm

Rich @154
“that person is also punished, especially if they are a politician in office or seeking office.”
But you can punish him: vote for someone else.
Wait, you want to say that war is often quite popular, and the politician who get punished is often the one urging restraint? Then why on earth you want to make it easier to punish unpopular ideas in academia?

167

Manta 09.26.16 at 2:46 pm

Chris G, . “some would prefer he not be subject to investigation and punishment by the university because they could IMAGINE a scenario where the results would not be to their liking”

See @15 Kiwand for a list of imaginary people.

168

TM 09.26.16 at 2:57 pm

Manta, this is pure troling. No more peanuts for you.

169

Manta 09.26.16 at 3:15 pm

I didn’t realize you were trolling, TM: shame on me.

170

Manta 09.26.16 at 3:31 pm

If you want to make a case that “journalist” is some kind of special profession, that deserves less right than other workers (like e.g. lawyer is a special profession, and a lawyer has e.g. obligation of confidentiality to his clients, or a priest is a special profession, and a church has the right to fire a priest if he converts to some other religion), make it.

171

TM 09.26.16 at 3:34 pm

Pure trolling. Shame on the spell check.

172

Manta 09.26.16 at 3:40 pm

Hmf, OK: I see that you don’t have any good argument.
Pity, because I would have be interested in hearing a reasoned take on it.

173

Consumatopia 09.26.16 at 3:46 pm

Of course they can: yours is a non-sequitur; replace everywhere “columnist” with “burger-flipper” and you will quite easily see there are plenty of good reasons why a fast food joint may want/need to fire a worker, that don’t involve what the worker tweets in his spare time.

Presumably one of the main reasons that USA Today hired him in the first place was his popular blog. The offending tweet was from the twitter account of that same blog. (I have no idea how much revenue said blog generates, but I’m not sure it’s any more “spare time” than his newspaper column was.)

Even if that weren’t the case and the tweet was from his personal account, the opinions he expresses publicly have obvious relevance to his suitability to be paid to express his opinions. There’s no “special profession”, just a simple principle that if political opinions are explicitly part of your job–the word “opinion” is in the very name of the thing your produce–then you can be fired for your political opinions. Or even more simply than that, if it’s okay to refuse to hire someone for a job based on their political opinions (which you’ve already admitted in the case of Reynolds) then it should be okay to fire them for that same reason.

Do you understand yet?

174

Manta 09.26.16 at 3:48 pm

Let’s see: a gourmet cook could be fired if he likes to cook junk food in his spare time?

175

Manta 09.26.16 at 3:51 pm

Anyway, I am arguing from my egoistical point of view: if I read an OpEd on a newspaper by someone famous-ish for something different than writing OpEd on newspapers, I would like to read the opinion of the writer, not of the newspaper owner.

176

Consumatopia 09.26.16 at 3:52 pm

Of course Reynolds wasn’t even fired he was just suspended for a month. But they would be perfectly in their rights to fire him (and they should have).

177

Manta 09.26.16 at 3:53 pm

Consumatopia, of course they would be in their right to fire him: just like it is in the right of almost most employers in USA to fire his workers on a whim.

178

Consumatopia 09.26.16 at 4:45 pm

@165 If the gourmet cook was hired to “cook what he liked”, if “what he liked” was an explicit part of the product he created, then possibly. Definitely if part of their job is to promote a healthy lifestyle by citing their personal experience. The general rule still applies–if it’s okay to hire him or her on the basis of what they eat in their spare time, it should be okay to fire them for that same reason.

Implementing your egotistical point of view with the law would be incompatible with the First Amendment for reasons given by rea and TM. Worse, it’s a desire that’s at odds with reality–whether you like it or not, when you read an op-ed in the newspaper, you may not be reading the owner’s opinion but you’re reading an opinion that the owner/editors deemed worthy of print. My own egotistical point of view is that I don’t want people to be fooled by the game of giving someone with immoral views a special platform to speak, then playing coy when people call you out on (“he said it, not me!” or as Reynolds himself puts it, “heh”.) This illusion would prevent us from questioning the institutions that determine which voices get public attention and which voices do not.

179

Marc 09.26.16 at 5:13 pm

Analogies can, conveniently, lead you wherever you want them to go. I would have hoped that people here could resist the urge to interpret words in the most narrow and literal fashion possible. Because, once you do that, you have to conclude that Eris Loomis (writing that he wanted to see heads on sticks), was literally advocating decapitation; that people calling for tumbrels after the financial crisis really did want to bring back the guillotine; and that people in the crowd under the NY stock exchange during the crisis really did want financiers to jump to their deaths from high ledges.

Now, if someone was actually organizing the running down of protestors, or actually doing it, that would be vehicular homicide, or an actual crime, with an actual arrest and trial associated with it. Which would be different from a few words in a tweet.

That’s the difference between common sense and making a mountain out of a molehill. And no one is fooled when extremists try to invent reasons why it’s OK to fire people who disagree with them politically.

180

Rich Puchalsky 09.26.16 at 5:32 pm

Before you go too far down this rabbit hole, the OP really was not about whether he should be fired from his opinionating job of whatever kind. It was about whether he should be fired (or otherwise disciplined) from his job as a university professor.

181

Marc 09.26.16 at 5:57 pm

@170 – agreed. I’m just making the point that you don’t need to take everything that everyone says literally, which appears to be the puzzling standard that a lot of folks are using here. This is the sort of thing that gets twelve year old kids arrested in middle school by armed guards because they mouthed off in frustration, and it’s not a standard to aspire to.

182

bruce wilder 09.26.16 at 5:58 pm

It remains kind of amazing to me that this Instapundit guy has a job as a university professor. Dr. Jeckyll / Mr Hyde? We all have our hobbies, not to mention fetishes, but this guy’s internet persona models not a university professor’s reflective rationality and scholarship, but being a moron “in the ambiguous borderland between right wing hackery and active depravity”.

If it were up to me, I wouldn’t fire him for what might well be characterized as a corrected mistake (not that I am much impressed by his apology), but I would fire him for being Instapundit. The overall pattern of conduct and the notoriety of that conduct arguably brings disrepute on the UofT. If this is the occasion that draws attention to what Instapundit is, so be it.

As for the argument that getting Reynolds fired makes academics who become prominent for expressing leftish notions more vulnerable, I think this is naïve at best. Such a principle of truce works only as long as you can prove that you have sufficient power that a truce is worth it to the other side. Take out a Reynolds or a John Yoo or Rush Limbaugh from time to time, and then you might be able to negotiate some measure of mutual tolerance cum drawing of sensible boundaries. Surrender pre-emptively, on principle, as the OP advocates, and what you get is the rightward ratchet cum descent into the crapification of the discourse. The Right smells fear and weakness; it doesn’t give store credit for a failure to complain.

183

Rich Puchalsky 09.26.16 at 6:39 pm

BW: “As for the argument that getting Reynolds fired makes academics who become prominent for expressing leftish notions more vulnerable, I think this is naïve at best.”

Insofar as legalism has any force, and insofar as it bears on this case, viewpoint-neutral legalism is generally better for the left than a realistic and cynical view of the legal system as it actually is. By holding to a fantasy you may get people to make real some small fraction of a fantasy.

As for a tit-for-tat response in which one side goes after Reynolds in response to Reynolds going after Loomis, the disadvantages are legion. First, people would have to pretend to care. Second, having pretended to care, they’d have to pretend not to care about the innumerable more serious and vicious encouragements-to-violence that elites make all the time, or at least pretend that those aren’t so much more serious as to make this one ludicrous in comparison. Third, since pretense slowly becomes reality at least in the sense that it affects people’s mind-set, people would slowly become people who actually did care about this in a serious way and thus destroy their lives and any hope of a creative and interesting existence.

184

bruce wilder 09.27.16 at 12:18 am

People were pretending to care while destroying any hope of a creative and interesting existence for centuries before the internet came along.

185

Sebastian H 09.27.16 at 1:06 am

“As for the argument that getting Reynolds fired makes academics who become prominent for expressing leftish notions more vulnerable, I think this is naïve at best. Such a principle of truce works only as long as you can prove that you have sufficient power that a truce is worth it to the other side.”

I understand that you have that as a general principle, but it is especially wrong here. There is already a liberal principle, enshrined into law and common in contracts that academics get special treatment. What you’re suggesting is that we tear it down just for Glen Reynolds and then hope that the precedent doesn’t get applied to lefties.

Now I would additionally argue that we ought to extend it to other jobs, because academics aren’t really a special flower. But that is a different issue.

186

bruce wilder 09.27.16 at 2:11 am

I am arguing that we ought to actually judge the performance of the precious little flowers and provide a modicum of privacy to everyone.

Blanket immunity is a fallback position for weakness. Pretending as RP put it msy be the we can accomplish, but it is just pretending, not real principle.

187

TM 09.27.16 at 7:49 am

179: “Surrender pre-emptively, on principle, as the OP advocates, and what you get is the rightward ratchet cum descent into the crapification of the discourse. The Right smells fear and weakness; it doesn’t give store credit for a failure to complain.”

Consumatopia, Manta will say the same thing over and over again. It’s pointless trying to argue.

188

Marc 09.27.16 at 9:13 am

It’s not “surrendering” to want to live in a world where people are free to express political views outside of the workplace without being fired from their jobs. For those inclined to self-interest instead, it also happens to be true that leftists are more vulnerable to this sort of retaliation than right-wingers, largely because of the ideology of the people who run small and large companies. But the philosophical point is strong enough for me even without the practical one.

189

Consumatopia 09.27.16 at 1:08 pm

um, that wasn’t me, I didn’t say anything about surrendering and I don’t think Reynolds should be investigated or disciplined at University of Tennessee.

I think that’s more a matter of academic freedom (and First Amendment issues because he’s at a state school) than workplace freedom, though. If Reynolds were, for inexplicable reason, working at some sort of liberal think tank instead of being a professor and his employers suddenly discovered Instapundit then I think they should be able to fire him.

For that matter, if an elementary school teacher was found to be tweeting literal Nazi stuff, or if that woman who made the infamous alligator tweet had a job involving children, then, yeah, they should probably be fired or at least disciplined.

Some political views really are disqualifying for some jobs.

190

Collin Street 09.27.16 at 1:26 pm

I understand that you have that as a general principle, but it is especially wrong here. There is already a liberal principle, enshrined into law and common in contracts that academics get special treatment.

Sure. But “special treatment” isn’t carte blanche, some sort of fucked-up kirisute-gomen of letters. It’s special treatment, not blanket immunity.

Or maybe you think it is, or should be: maybe you think an academic might write a public letter to the Chief Imam of Poughkeepsie, saying “I think your 12yo daughter should suck my cock” or what-have-you and that’s all OK, or at least the best possible outcome.

191

Rich Puchalsky 09.27.16 at 1:59 pm

BW: “Blanket immunity is a fallback position for weakness. Pretending as RP put it msy be the we can accomplish, but it is just pretending, not real principle.”

Real principles get made into reality against entrenched interest because of solidarity and similar kinds of social mechanisms, which let people work together. Pointing out fake solidarity is one of the things I do a lot, because fake solidarity doesn’t actually work. It’s deployed as a way of making oneself feel better by rhetorically shaming someone else, but it doesn’t actually do anything.

There are three kinds of solidarity being rhetorically deployed in this example. One of them is academic solidarity: professors should not be disciplined because then things will get worse for all professors. One is liberal solidarity: conservatives who say bad things should be disciplined because otherwise they’ll attack liberals costlessly and things will get worse for all liberals. One is general worker solidarity: people should not be disciplined for what they say outside of work because then things will get worse for all workers.

I think that the second and third of these are fake solidarities. The first, a kind of craft guild solidarity, does exist to some extent. Depending on the second or third for anything important is setting people up for a fall if they are not actually privileged people and actually need support.

192

bruce wilder 09.27.16 at 3:12 pm

Nice breakdown of the solidarities. All three are pretty weak.

That they are so weak is alarming but also produces personal anxiety and insecurity. Pretending (fake solidarity) is cheap relief while actual solidarity would be costly. Passionate support for the plutocracy’s offer of lesser evil passes the time.

I think “liberal solidarity” (#2) is much broader than a putative union of liberals. It is social solidarity, a belief in the common good and general welfare as proper objects of public policy and a demand for performance in their support. So, a liberal wants journalists to report lies as lies, not as “he said, she said” and banksters prosecuted as criminals. Tit for tat is wanted only where such serves to promote productive social cooperation, not where it would be an empty standoff.

Liberal solidarity has its own degenerative disease in libertarianism, where cynicism and apathy and futility are not enough. All good, the only good, is individual and private and atomistic. Policy ought to be agnostic and blindly neutral, not fair.

193

bruce wilder 09.27.16 at 3:25 pm

The fake solidarity of #2 can manifest as the complacency of the crook and the cheat.

194

Sebastian H 09.27.16 at 3:40 pm

“Tit for tat is wanted only where such serves to promote productive social cooperation, not where it would be an empty standoff.”

The problem is that people really do have legitimate disagreements about what productive social cooperation looks like. We have to design the system to accommodate disagreement beyond just liberal and left. If you try to shut out the voice of everyone who leans right you get surprise Brexit votes and the like when the liberal order doesn’t play out perfectly.

195

bruce wilder 09.27.16 at 8:08 pm

The problem is that people really do have legitimate disagreements about what productive social cooperation looks like. We have to design the system to accommodate disagreement beyond just liberal and left.

I don’t disagree. I am not asserting that I have the one right answer to what constitutes productive and equitable social cooperation in all circumstances. In that, I am no doctrinaire socialist, if I may be permitted a libel of those to my left.

What you may be missing is that the idea of “legitimacy” is itself a liberal monopoly, upon which liberal hegemony over other political ideologies is founded. The liberal political master strategy over many, many decades has been to design the system on exclusively liberal principles and to operate the system in ways that accommodate vested-interest conservatives and reactionaries as hypocrites.

A recurrent problem is that people can also have “illegitimate” disagreements and comfortable liberals, enjoying an easy life and the benefits of their own hypocrisies, may find their backbones missing in action. And, ideologically, it is easier sometimes to defend a null of no policy at all against either an authoritarian status quo or even an emergent authoritarianism than to press the messy details of a case for discrimination and management with a public purpose.

But, I will hold with considerable confidence that I can find some reliable bounds for legitimacy and that justice requires policing those boundaries, not always shrugging one’s shoulders and pretending it doesn’t much matter.

196

Sebastian H 09.27.16 at 8:28 pm

Ok, but I’m equally confident that the necessary policing doesn’t involve getting a professor fired over hyperbolic tweets or over calling for people’s heads on a pike (Erik Loomis)

197

Manta 09.27.16 at 9:02 pm

@191 Sebastian H
“We have to design the system to accommodate disagreement beyond just liberal and left.”

Who is this “we” you re talking about?
Sure, many people want to do it (and they got at least in part by things like the 1st amendment); but some of the people you are arguing with here have no interest in accommodating different viewpoints: see @95 @186
For some reason, they think that giving workers less rights will move politics leftward: and that’s the only think they care about, not actual workers.

198

Manta 09.27.16 at 9:13 pm

bruce @179 fails to mention one of the main beneficiaries of academic freedom: the public, that gets to hear (some approximation of) what a scholar thinks on various topic.

Not everybody cares about ideological squabbles, and not every academic is willing to fight like a little soldier in the battle about left and right.

199

Collin Street 09.27.16 at 9:17 pm

hyperbolic tweets

See, there’s a reasonable case to be made that they aren’t hyperbolic; “run them over” isn’t an established idiom like “heads on pikes” is. If it isn’t hyperbolic — if a law professor is in fact advocating for lawless action — then, well, I think that sacking becomes something worthy of consideration, but that’ll need an investigation obviously. And to determine whether or not it is hyperbolic, again, will require investigation.

I don’t think that the possibility that a law professor might be determined after investigation to have advocated for potentially-lethal assaults and sacked or even disciplined on that account is a reasonable thing to be upset about. But there’s nothing else to be upset about, is there? Reynolds hasn’t been sacked.

200

Manta 09.27.16 at 9:20 pm

Collin @196, I agree with you: if there is a trial about his tweet, the university should consider disciplinary action.

201

Sebastian_H 09.27.16 at 10:17 pm

I agree that if he is CONVICTED at a trial about his tweet the university should consider action.

202

kidneystones 09.28.16 at 12:36 am

203

Consumatopia 09.28.16 at 1:41 am

“Sure, many people want to do it (and they got at least in part by things like the 1st amendment); but some of the people you are arguing with here have no interest in accommodating different viewpoints: see @95 @186
For some reason, they think that giving workers less rights will move politics leftward: and that’s the only think they care about, not actual workers.”

Was there some kind of post re-numbering issue? I see no resemblance between what you just wrote and my post which is currently @186. I said nothing about moving politics leftward.

204

Manta 09.28.16 at 8:18 am

Finally, I don’t understand whose rights the people who call for R. being disciplined are trying to defend.

I see 4 possible answers: 1) the people who don’t like to read R. tweets.
They don’t need any disciplinary action on R.: they only need not to read R. tweets
2) R. students. If and when R. behaves in an unprofessional manner towards them, they can file a complaint with the relevant University authorities, who THEN should investigate and eventually discipline him.
3) The professionally offended: most of them never even read the actual offending tweet (since it was quickly removed). Enough said.
4) the University, that gets its reputation tarnished.
As far as I can see, this is the only party in this dispute that has a legitimate complain (.e., that was actually harmed by the tweet).

Any other people I missed?

205

Manta 09.28.16 at 8:37 am

@200 Consumatopia
“Was there some kind of post re-numbering issue? I see no resemblance between what you just wrote and my post which is currently @186. I said nothing about moving politics leftward.”

The renumbering is annoying; I should have quoted more from the original posts to make the references recognizable in case of renumbering: sorry for the confusion.
To clarify: while we do disagree about how far workplace protections should go, as far as I can see, you never claimed that actually existing academic freedom (or 1st Amendment protections) should be WEAKENED.

206

kidneystones 09.28.16 at 10:24 am

The offending tweet:

http://twitchy.com/samj-3930/2016/09/22/whoohoo-censorship-free-speech-advocate-and-well-known-conservative-instapundit-suspended-on-twitter/

Trigger warnings to the faint of heart. Scroll down for the call to genocide.

Comments on this entry are closed.