The Big Chill: What Can a Law Professor Say and not Say These Days?
The air has turned chilly for university academics and administrators. Just a few blocks from my house, an Emory University professor was "terminated" for an apparently insensitive social media post about current events. Half a country away, the President of Texas A & M was forced to resign over what looks like a disagreement between a religious student and a professor about the proper content of the professor's course and a skirmish over "gender ideology." Oh, the professor was fired too.
It feels like every day someone is being fired for saying something that until recently wouldn’t and often couldn’t get anyone fired.
So, I have been reflecting on what I am allowed to say and not allowed to say given the current environment. I live in a Blue City, in a State that nationally votes Purple, but is very much run by Red, meaning GOP, politicians (both houses of the legislature and the governor). Given the current realities, I want to be clear that I am just pointing out these facts about my State and not judging the situation because that could be a Grey area, maybe.
Now I know both Mike and Neil have spoken freely on these pages, and God bless them for doing so. However, one of those folks is no longer subject to the jurisdiction of the United States, and the other is employed by a northern private school in a very Blue state, if you get my southern drift.
One more nugget before we begin: just last week a Texas GOP Congressman decided it would be a good idea to quote one of the worst Nazis of them all during a House subcommittee meeting aimed at determining whether a “censorship industrial complex” exists. In the words of Dave Barry, I’m not making this up.
“A direct quote from Joseph Goebbels: ‘It is the absolute right of the state to supervise the formation of public opinion,’ and I think that may be what we’re discussing here.”
So, I do not think I am overreacting, and here we go.
I have often said that the Supreme Court is not a real
court and its justices are not real judges because the justices do not take prior law seriously enough to justify the
labels “court” and “judge.” Of course, literally, the “Supreme Court is a
court,” but I am suggesting it does not act like one.
I’m fairly sure I can still say this, especially as I first
said this officially in 2012, and it is a non-partisan critique.
But, AND I AM NOT SAYING THIS, I’M REALLY NOT, JUST
WONDERING IF A LAW PROFESSOR COULD SAY THIS: Could I say that the current President
is not a “real president,” because he doesn’t act in the way real presidents should act?
That seems similar to the “not a court” thing I am allowed to say but really…who
knows? AND FOR THE RECORD I AM NOT SAYING THAT.
In the past, I have taken the position that America values
free speech way too much compared to other free countries and other important
values (OKAY I WAS REALLY WRONG ABOUT THAT. IT HAPPENS. I’M SORRY). I’m quite sure if this
were still my view, I could probably express it safely.
But, AND I AM NOT SAYING THIS, I’M REALLY NOT, JUST
WONDERING IF A LAW PROFESSOR COULD SAY THIS: Could I say that under current
conditions, especially the events of the last few weeks, that I fear for free
speech in America given the expansive reach of the Federal Government run by a
political party that for 65 years has warned us about the expansive reach of
the Federal Government? I really don’t know if I could safely say that.
On this Blog, and in many other places, I have pointed
out that Justice Thomas has never denied that billionaire Harlan Crow has lavished
him with gifts and money, such as supplementing his wife’s salary, paying for
his child’s private school tuition, and subsidizing his mother’s house. These
are true facts that I think I am allowed to report and perhaps even further suggest that maybe
public officials, such as, say judges, should not accept such gifts for, among
many reasons, the appearance of impropriety or maybe even the appearance of
corruption.
But, AND I AM NOT SAYING THIS, I’M REALLY NOT, JUST
WONDERING IF A LAW PROFESSOR COULD SAY THIS: Am I allowed to suggest that the
President’s family making much moolah from numerous business ventures relating to, say crypto currency, is maybe
something that possibly, maybe raises risks of at least the appearance of …well
something not so great? I don’t know if I could still say that if I wanted to
say that, and I am not now saying that, just wondering if I could say it.
Over the course of my career, I have called the theory
that goes by the name “originalism,” every bad name in the book because I genuinely
believe I have shown that it is a really bad theory deserving of every bad name
in the book (I’ve always wondered what book that is).
I have tried to refrain from calling originalists themselves (other
than Supreme Court justices) bad names just because they believe in originalism
(even though in reality almost no one really does believe in the theory in a
serious way) (see I’ve been saying things like that). I think I can still say
things like that.
But, AND I AM NOT SAYING THIS, I’M REALLY NOT, JUST
WONDERING IF A LAW PROFESSOR COULD SAY THIS: Am I allowed to call the Administration’s
theories of immigration, deportation, and executive power in general the same kinds of names I call the theory of originalism? I really don’t know.
I have called Justice
Alito many bad names for doing things like citing 17th century men in
cases about women’s rights, flying political flags at his house, and going to
Rome on a bragging and speaking tour not too long after giving the Vatican the greatest constitutional
law gift the Court could possibly give it. I think I am still allowed to call Justice Alito
names for this behavior (maybe Sexist Sam)?
But, AND I AM NOT SAYING THIS, I’M REALLY NOT, JUST
WONDERING IF A LAW PROFESSOR COULD SAY THIS: Were I to use the same types of
names to describe the current FBI Director who seemed to be screaming really
loudly all week at members of Congress (maybe they deserved it), would I get
into trouble (if I did that)? I really don’t know.
I have for 35 years expressed the view that most forms
of affirmative action are clearly constitutional under the legal standards set forth
by those scholars and judges most opposed to such programs, namely text and history
(those darn originalists again). I have also said that as a policy matter I
generally support such programs, including DEI initiatives WHICH AREN’T THE SAME
THING, BUT I DIGRESS.
I am an alumnus of Emory University. Emory just cancelled all their DEI programs--all of them. AND I
AM NOT SAYING THIS, I’M REALLY NOT, JUST WONDERING IF A LAW PROFESSOR COULD SAY
THIS: Could I say that this is a tragically bad thing for an elite university to do in
a state that was segregated under the law for almost a century even if the
university is doing so under a federal government gun to its head?
I really don’t know if I could say that if I wanted to, which I am not saying that I
do.
And, finally, for 35 years now I have been criticizing
the justices in many different ways, often quoting exactly what they say. For
example, I have strongly criticized Chief Justice Roberts using his very own
words, which are often, well, in my view not legally warranted, such as “the way
to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
I really don’t have to comment much on such pearls of … whatever … because they
speak for themselves. I am fairly sure I can still do this.
But, AND I AM NOT SAYING I WANT TO DO THIS, I’M REALLY
NOT, JUST WONDERING IF A LAW PROFESSOR COULD SAY THIS: Could I try to
paint a picture of our President by repeating his own words? Like could I say,
if I wanted to, that this week the President said,
according to Reuters (and me because I heard the words myself) the following:
"Trump, speaking to reporters aboard Air Force One, complained about receiving bad publicity from broadcasters, saying,'That's something that should be talked about for licensing. ... All they do is hit Trump.'"
"I would think maybe their license should be taken away," Trump said. "It will be up to Brendan Carr."
Or could I simply repeat things the President has said
about certain celebrities or for that matter entire genders (if I wanted to)
and let the words (speech) speak for themselves, you know freely?
Could I do that IF I WANTED TO?
I really don’t know.
-- Eric Segall