The Power Struggle at the Columbia Law Review

For several days, the Columbia Law Review (CLR) website has been offline. Clicking on it produces the statement "Website is under maintenance." That's not true in any real sense. There's nothing technically wrong with the website that requires maintenance. Rather, the CLR website went dark because its outside board of directors had concerns about publication of Rabea Eghbariah's article Toward Nakba as a Legal Concept. 

After some recapping, I'll offer a couple of thoughts about where I think the board went wrong. Readers who follow me on know that yesterday evening I posted a thread about this topic. This essay covers some of the same ground as that thread, updated to reflect what I've since learned.

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Back in the fall, the Harvard Law Review (HLR) solicited an essay by Eghbariah for its online blog but, after the full membership voted on the matter, opted not to publish the essay after all. Among the reasons given to Eghbariah was a worry that, in light of the controversial nature of the essay, HLR personnel might be subject to threats, doxxing, or other forms of intimidation. The Nation then published Eghbariah's essay--which almost certainly led to more people reading it than would have read it had it appeared on the HLR blog.

At some point thereafter, CLR solicited a much longer and more substantial version of the argument Eghbariah had made in the original essay. A limited number of people at CLR worked on the article without offering access to the full staff. Why? According to a NY Times story, Columbia Law Professor Katherine Franke said that the secretive process was used because the editors feared censorship. That fear was reasonable in light of the HLR experience.

When, on the eve of publication, the full CLR staff had access to the Eghbariah article, some number of them were upset about both its content and the fact that the usual procedures had not been followed. I do not know whether they voiced their concerns within the CLR and were rebuffed or whether they skipped that step (perhaps for fear of ostracism and/or retaliation), but these students contacted the board of directors to complain.

I'll say more about what followed momentarily, but here I pause to make clear that the staff and editors of the CLR are second and third-year law students, while the outside board comprises law faculty and alumni of CLR. If you're wondering why most of the most prestigious journals of legal scholarship are run by students without sufficient knowledge to make reasoned judgments about what to publish, you're not alone. Professor Paul Horwitz uses the current controversy as an opportunity to urge greater faculty direction in the selection of articles for publication in law journals, although he also states (and I agree) that that is a longer term project that doesn't justify the one-off after-the-fact decision made here. For what it's worth, I am on record as stating that student-edited journals have some virtues that peer-reviewed journals lack. But all of that is a digression. The important point for now is that the CLR editors are law students; the board are law professors and lawyers.

What happened when the board learned about the process irregularities? According to a letter that made its way to X (scroll down a bit here) and that apparently the NY Times reporter also saw, the board and the CLR editors agreed that publication would be delayed four days -- from June 3 to June 7 -- to give the full CLR staff a chance to review the article; however, in violation of that agreement, CLR was going to publish the article on the CLR website on June 3 anyway; and at that point the board froze the website, stating in the letter that, in light of the article's de facto publication elsewhere (as in the link in the first paragraph of this essay), the website would be unfrozen if the article were published along with a disclaimer (potentially coming from the board) noting the procedural irregularities accompanying publication.

I have read competing accounts of the extent to which the selection and editing process for Eghbariah's article deviated from CLR's usual processes. The board letter says the deviation was "significant." Even Professor Franke, who favors publication of the article, admits there was a "somewhat irregular process," albeit one that was justified by the fear of censorship. I'm not well positioned to adjudicate how substantial the process deviation was, but Professor Franke's comments to the NY Times also point to a more important concern: the board's possibly censorial motives. She said: "It’s a little hard for me to believe that if the article had been about anything else, the board would have cared about the process . . . ."

Note that Professor Franke was not suggesting that the board had no process concerns or even necessarily that those concerns were pretextual. Rather, the suggestion is that the process concerns were not themselves a sufficient cause for or explanation of the board's action. There is at least some indication in the board's letter itself that this is true. In explaining the board's reasons for seeking a publication delay to allow for wider consultation among CLR staff, the letter states: "Whatever your views of this piece, it will clearly be controversial and potentially have an impact on all associated with the Review."

To be sure, the board's letter did not state that wider consultation within CLR was needed because members of the board disagreed with or were offended by Eghbariah's article. However, taking action to limit access to speech because that speech will be controversial is--to borrow a category from First Amendment doctrine--content-based. It enables something like a heckler's veto if process irregularities rise to the level of triggering a response only when the speech is controversial. 

In saying that the board's actions appear to be at least partly de facto content-based, I am not saying that they were the product of bad motives. The leading actors on behalf of the board appear to be Professor Gillian Metzger (currently serving in the DOJ's Office of Legal Counsel) and attorney Ginger Anders. As I noted in my thread on X, Professor Metzger was my colleague for many years, while Ms. Anders is an outstanding lawyer who happened to be my student many years ago. They both generally have excellent judgment.

But smart people of integrity can sometimes err, and I'm persuaded the board erred here. 

There were two basic errors. The first was the decision to shut down the CLR website. The board's letter states that the board shut down the website "to preserve the status quo" to allow the full membership to review the article but also acknowledges that the article was already circulating publicly, so that, "as a practical matter, it" was already "published." And not just published as a draft. The circulating version bears a prominent large-font "Columbia Law Review" heading. Shutting down the website did not preserve any status quo. It created a new and very uncomfortable situation.

The second error was the failure to foresee that the board's actions would be perceived as censorship, whether or not that is a fair description. The board apparently also failed to foresee that its inevitably very public confrontation with the student editors would generate much more negative publicity for CLR than the article itself would have.

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As I hit "publish" on this essay at 6 pm on Wednesday June 5, the CLR website remains in maintenance mode. I can only assume that is because of a standoff between the board and the student editors in charge--with the latter refusing to add the board's disclaimer to the article and the former refusing to unfreeze the website until the disclaimer is added. If anyone were to ask me, I would advise the board to relent. At this point, anyone who is interested in reading Eghbariah's article in the CLR itself will likely be fully informed about the board's concerns.

Postscript: Weirdly, the "maintenance" message appears on the CLR homepage and some but not all interior pages. For example, this 2014 article by Professor Buchanan and me is accessible (or at least it was when I posted today's essay), as are some other articles in the CLR, but many others just redirect to the "maintenance" message. If there's a pattern to what is and isn't accessible, I haven't decoded it. Perhaps someone should do some maintenance on the CLR website while it's in maintenance mode.