Category Archives: Law

Following the forced resignation of Yale Professor Erika Christakis, former Vermont Governor and Democratic Party Chairman Howard Dean tweeted:

Yale faculty member at center of protests will leave teaching role http://fw.to/4CDnirR  Free speech is good. Respecting others is better.

Many remember Howard Dean as the author of the 2004 “Scream,” the incoherent squawk that doomed his presidential campaign. While both were inane, the Tweet may outclass the Scream in fundamental dumbness.

First, some background.  The Yale faculty member mentioned in the Tweet is Erika Christakis, a respected expert in early childhood education.  Last Fall, 13 members of the Intercultural Affairs Committee at Yale — administrators with too much time on their hands, apparently — circulated an email advising students on which Halloween costumes were and were not appropriate. The Committee warned students not to make “culturally unaware or insensitive choices,” and advised them to visit https://www.pinterest.com/yalecces/, to see “a great resource for costume ideas organized by [Yale’s] own Community & Consent Educators.”

That website truly is worth a visit – especially by parents concerned with the rising cost of college tuition. In addition to warning against “culturally insensitive costumes,” it warns students to “avoid costumes that prevent you from breathing” and “costumes that prevent you from going to the bathroom.” Thus do college administrators justify their salaries.
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On July 4, Kevin Joseph Sutherland, a 24-year old political activist, boarded a Washington DC Metro train en route to a holiday concert at RFK Stadium. Jasper Spires, an 18-year old college dropout, approached Sutherland and tried to grab his cellphone. During the three minute ride to the next station, Spires punched Sutherland until he fell to the floor, and then stabbed him 30 to 40 times. After a brief pause during which he robbed other passengers, Spires returned and stomped on Sutherland’s body.  According to one witness, Spires “drop-kicked him in the head several times, like he wanted to kick his head off.”

When the car arrived at the station, Spires walked off. He dropped his camouflage pants and a bag containing his knife. He jumped a turnstile and left the station.

Hours later, Sutherland was pronounced dead at the scene.

This essay is not about Mr. Sutherland. It is about the ten passengers who watched Spires murder Sutherland, and did nothing. Continue reading →

Gvetch, gvetch, gvetch.

This blog — like so many other punditic ventilators — complains a lot. In the past year, it has grumbled about political correctness, Obama’s foreign policy, lawyers, and even college reunions. And those were just the lighter essays.

Negativity may attract internet traffic, but it is not humanity’s entire story. There are many positive stories lurking in the recesses of the news. Now, the afterglow of Thanksgiving, and on the threshold of the Christmas and Chanukah season, may be an appropriate time to pause and take note of five unreported or under-reported good news stories.

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The cancellation of the six REDSKINS trademark registrations is not so much a victory for American Indians, as it is a defeat for commercial speech, which means a defeat for the First Amendment.

According to the Trademark Trial and Appeal Board (“TTAB”), 30% of American Indians consider REDSKINS a disparaging and offensive term.  Even assuming that is so — and the flimsy record in the case does not inspire confidence — the decision should alarm Americans of every category.  For the logic of the TTAB’s ruling gives any minority faction — regardless of the merit of their position — the power to deprive others of the important governmental benefit of trademark registration, which is a form of constitutionally protected commercial speech.

Many commentators have viewed the case as a contest over respect for Native Americans.  But the TTAB ruling transcends the trademarks in question.  One does not have to agree that a word with obvious racial overtones like “redskins” is an appropriate choice for a football team, to appreciate the chilling effects of the ruling.

The root of the danger does not lie with the 2-1 majority decision to cancel.  It lies with the law they applied.    Continue reading →

The termination of Brendan Eich – a big story earlier this month — raised important First Amendment issues concerning the boundary line between the right of individuals to engage in private political activity and the public interest in campaign finance disclosure.  There is a tension between the two.  The Eich affair tells us it’s time to take a fresh look at balancing them.

Brendan Eich you will recall (the news cycle moves so swiftly these days) is the geeky pioneer and inventor of Javascript.  He was forced to resign after only ten days as CEO of Mozilla.  His sin was donating $1,000 six years earlier to support California’s Prop 8, a ballot initiative which deemed marriage as an institution between a man and a woman.  In 2008, when Eich made his donation, that idea commanded the assent of every Presidential candidate, including Barak Obama and Hillary Clinton.  Prop 8 was approved with 52% of the vote.

Prop 8 was subsequently invalidated by the courts, and the passage of time has changed popular attitudes. Today, same-sex marriage commands majority support in every region of the country, and in every age group.

But Eich’s 2008 contribution – like that of all contributors, pro and con, to the Prop 8 contest –remains a matter of public record.  And publicity has its consequences.  In Eich’s case, it was a career-ender.

Commentators may have differed on their attitudes toward his termination, but a consensus quickly emerged that this was a private matter between him and his employer, and, as such, beyond the reach of the First Amendment.

“At the risk of sounding pedantic,” wrote a commentator for Slate, sounding pedantic,

…[T]the First Amendment applies exclusively to state actors, like Congress or state legislatures, so a private corporation like Mozilla simply cannot infringe upon an employee’s free speech rights, even if it wanted to. There is no wiggle room around this point. It is a basic constitutional fact.

A commentator for National Review Online agreed that “this sordid and alarming little affair does not in any way implicate the First Amendment.”  Andrew Sullivan, redoubtable champion of same-sex marriage but also one of the first to criticize Mozilla for its intolerance, conceded that Eich “wasn’t a victim of government censorship or intimidation….  He still has his full First Amendment rights.”

Well, no.  Eich doesn’t have his full First Amendment rights.  He never did.

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