Category: reason

Immigrants Vote With their Feet for Greater Freedom


Statue of Liberty 3

The idea that migrants seek to move to freer societies is far from a new one. In my book Free to Move: Foot Voting, Migration, and Political Freedom, I cite evidence indicating that migrants tend to move to nations with greater economic liberty, and that female migrants often especially prefer those where there is greater equality for women. But I also pointed out that it’s difficult to quantify the extent of the gains in freedom involved, even though in many cases, they are obviously large.

In a just-published short article, Cato Institute immigration scholar David Bier provides some valuable data that quantifies this effect much more fully than any previous analysis.

Using the Cato Institute‐​Fraser Institute Human Freedom Index and the United Nations Population Division’s international migrant stock data, it is possible to estimate that about 187 million people have moved to freer countries than the ones in which they were born. The average immigrant moving to a freer country moved 70 spots up the Human Freedom Index ranking. This is roughly like moving from Libya to Mexico or from Mexico to the United States.

Cuban immigrants have benefited the most from immigration, moving up, on average, 172 spots relative to their birth country, which is about the difference between the United States and Cuba…

As Bier points out the Cato-Fraser Human Freedom Index includes both economic and civil liberties. So it’s a broadly inclusive measure of freedom.

The effect of moving 70 or more spots on this scale is truly enormous. The difference betwen spending your life in Cuba or the United States is the difference between a lifetime of poverty and oppression versus much greater freedom, well-being and happiness for your children. The narrowly “economic” benefits alone are enormous, amounting to roughly a doubling of world GDP if all migration restrictions were dropped. But even that kind of figure falls short of capturing the full benefits, which includes such things as dissenters escaping censorship, ethnic, religious, and racial minorities fleeing persecution, and so on.

Bier does point out that a minority of migrants (about 69 million of the 256 million in the UN data base), actually moved to countries with lower freedom ratings than those they left behind. As he points out, however, many of these are cases where the gap is relatively small, and the migrant in question may have been seeking to avoid oppression targeted at his or her specific group. For example, even if country A is, on average, less free than B, A may provide greater freedom to a particular racial or religious minority which is the object of persecution in B:

Some 69 million immigrants have moved to less free countries than their birthplaces, but these moves are almost always lateral (an average of about 15 spots down versus 70 spots up the rankings), and in almost all cases, these moves are still almost always freedom enhancing for the individual mover. The specific type of freedom that might be most urgently needed may be more relevant to the immigrant than the other types….

This is why even what appears on average to be a net loss in liberty can, given a person’s individual circumstances, be freedom‐​enhancing.

I would add that there is necessarily a good deal of imprecision in data like this. While a gap of 70 spots on the Cato-Fraser Index is likely to capture genuinely large differences between the nations in question, a gap of 15 or fewer may often be primarily just noise in the data. Nonetheless, it would be useful to conduct a closer examination of the minority of migrants (about 27%), who choose societies rated as less free than their countries of origin.

In addition to increasing freedom for migrants, expanding international migration also increases freedom and wealth of natives. I summarize some of the reasons why here.

Perhaps the most common response to arguments that migration increases freedom is the claim that immigration from repressive societies can damage the institutions that ensure freedom in destination countries. Perhaps the immigrants bring with them the harmful values and institutions that ruined their previous homes. In the most dire scenarios, the latter’s institutions can deteriorate to the point where they are no better than the former, thereby “killing the goose that laid the golden egg” that makes a nation attractive to migrants in the first place.

Such concerns should not be lightly dismissed. But, in Chapter 6 of my book, I go through a lot of evidence indicating that they are greatly overblown. Indeed, native nationalists generally pose a greater threat to liberal democratic institutions than immigrants do.

Alex Nowrasteh and Ben Powell’s recently published Wretched Refuse? The Political Economy of Immigration and Institutions is the most thorough analysis yet of the impact of immigration on destination-country institutions. And their conclusions are much the same as mine. In my book, I also address arguments to the effect that migrants have an obligation to stay home and “fix their own countries,” thereby perhaps improving their institutions.

For situations where immigration really does pose an institutional threat, I outline a wide range of “keyhole solutions” that can mitigate the danger by means less draconian (and less costly) than excluding migrants. For example, if (contrary to the evidence) you believe that immigrants might overburden the welfare state, a simple keyhole solution (already embedded in the 1996 welfare reform act) is to limit their access to welfare benefits.

We cannot categorically rule out the possibility that the freedom-enhancing advantages of free migration could sometimes be outweighed by other considerations. But any such considerations would have to be both extremely weighty, and backed by strong evidence showing that there is no way to address them other than by consigning would-be migrants to lives of poverty and oppression.

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Immigrants Vote With their Feet for Greater Freedom


Statue of Liberty 3

The idea that migrants seek to move to freer societies is far from a new one. In my book Free to Move: Foot Voting, Migration, and Political Freedom, I cite evidence indicating that migrants tend to move to nations with greater economic liberty, and that female migrants often especially prefer those where there is greater equality for women. But I also pointed out that it’s difficult to quantify the extent of the gains in freedom involved, even though in many cases, they are obviously large.

In a just-published short article, Cato Institute immigration scholar David Bier provides some valuable data that quantifies this effect much more fully than any previous analysis.

Using the Cato Institute‐​Fraser Institute Human Freedom Index and the United Nations Population Division’s international migrant stock data, it is possible to estimate that about 187 million people have moved to freer countries than the ones in which they were born. The average immigrant moving to a freer country moved 70 spots up the Human Freedom Index ranking. This is roughly like moving from Libya to Mexico or from Mexico to the United States.

Cuban immigrants have benefited the most from immigration, moving up, on average, 172 spots relative to their birth country, which is about the difference between the United States and Cuba…

As Bier points out the Cato-Fraser Human Freedom Index includes both economic and civil liberties. So it’s a broadly inclusive measure of freedom.

The effect of moving 70 or more spots on this scale is truly enormous. The difference betwen spending your life in Cuba or the United States is the difference between a lifetime of poverty and oppression versus much greater freedom, well-being and happiness for your children. The narrowly “economic” benefits alone are enormous, amounting to roughly a doubling of world GDP if all migration restrictions were dropped. But even that kind of figure falls short of capturing the full benefits, which includes such things as dissenters escaping censorship, ethnic, religious, and racial minorities fleeing persecution, and so on.

Bier does point out that a minority of migrants (about 69 million of the 256 million in the UN data base), actually moved to countries with lower freedom ratings than those they left behind. As he points out, however, many of these are cases where the gap is relatively small, and the migrant in question may have been seeking to avoid oppression targeted at his or her specific group. For example, even if country A is, on average, less free than B, A may provide greater freedom to a particular racial or religious minority which is the object of persecution in B:

Some 69 million immigrants have moved to less free countries than their birthplaces, but these moves are almost always lateral (an average of about 15 spots down versus 70 spots up the rankings), and in almost all cases, these moves are still almost always freedom enhancing for the individual mover. The specific type of freedom that might be most urgently needed may be more relevant to the immigrant than the other types….

This is why even what appears on average to be a net loss in liberty can, given a person’s individual circumstances, be freedom‐​enhancing.

I would add that there is necessarily a good deal of imprecision in data like this. While a gap of 70 spots on the Cato-Fraser Index is likely to capture genuinely large differences between the nations in question, a gap of 15 or fewer may often be primarily just noise in the data. Nonetheless, it would be useful to conduct a closer examination of the minority of migrants (about 27%), who choose societies rated as less free than their countries of origin.

In addition to increasing freedom for migrants, expanding international migration also increases freedom and wealth of natives. I summarize some of the reasons why here.

Perhaps the most common response to arguments that migration increases freedom is the claim that immigration from repressive societies can damage the institutions that ensure freedom in destination countries. Perhaps the immigrants bring with them the harmful values and institutions that ruined their previous homes. In the most dire scenarios, the latter’s institutions can deteriorate to the point where they are no better than the former, thereby “killing the goose that laid the golden egg” that makes a nation attractive to migrants in the first place.

Such concerns should not be lightly dismissed. But, in Chapter 6 of my book, I go through a lot of evidence indicating that they are greatly overblown. Indeed, native nationalists generally pose a greater threat to liberal democratic institutions than immigrants do.

Alex Nowrasteh and Ben Powell’s recently published Wretched Refuse? The Political Economy of Immigration and Institutions is the most thorough analysis yet of the impact of immigration on destination-country institutions. And their conclusions are much the same as mine. In my book, I also address arguments to the effect that migrants have an obligation to stay home and “fix their own countries,” thereby perhaps improving their institutions.

For situations where immigration really does pose an institutional threat, I outline a wide range of “keyhole solutions” that can mitigate the danger by means less draconian (and less costly) than excluding migrants. For example, if (contrary to the evidence) you believe that immigrants might overburden the welfare state, a simple keyhole solution (already embedded in the 1996 welfare reform act) is to limit their access to welfare benefits.

We cannot categorically rule out the possibility that the freedom-enhancing advantages of free migration could sometimes be outweighed by other considerations. But any such considerations would have to be both extremely weighty, and backed by strong evidence showing that there is no way to address them other than by consigning would-be migrants to lives of poverty and oppression.

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Prof. John McWhorter (Columbia) on “People Getting Fired for Referring to the N-Word—Activism or Performance Art?”

You can read the item here; I believe it’s accessible to non-subscribers. I’ve long loved Prof. McWhorter’s lectures and podcasts on language, and his written work is similarly thoughtful and readable. Here are his concluding paragraphs (for those who don’t know his work, he uses “Elect” to refer to adherents to what he sees as the quasi-religion of “anti-racism”):

Many ask why black people give whites the power to harm us so easily with this word. I for one have never and never will see it as a badge of strength to announce to white America that uttering a sequence of sounds will send me into therapy. I’d be embarrassed if it did, and that is what I call Black Power.

But I know I am missing the point. This performative transformation of the N-word into a taboo term affords a kind of power: black Elects get a way of getting back at whites by destroying their careers; white Elects spectating get to show they aren’t racists by cheering on the witch-hunting. To these people all of this feels healthy, active, restoring, noble.

But the problem is that while it may feel that way to them, to the rest of us – among whom are legions of thoroughly reasonable, intelligent, concerned, and sensitive persons of all races  – this new take on the N-word looks paranoid, fake, and mean.

What kind of antiracism is that?

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Rutgers Law Students Calling for a “Policy” on Students and Faculty Quoting Slurs from Court Cases

As Prof. Randall Kennedy and I have noted, slurs (“nigger,” “nigga,” “fag,” “cunt,” “kike,” “spic,” etc.) appear in over 10,000 court cases available on Westlaw, as well as a vast number of briefs and other court filings (most of which aren’t even visible on Westlaw).

Unsurprisingly, after class last Fall, a student at Rutgers Law School in New Jersey asked a professor about one of those 10,000+ cases—State v. Bridges (1993), decided by the New Jersey Supreme Court. The passage, from which the student quoted part of the last sentence, reads:

On September 2, 1988, defendant, Bennie Eugene Bridges, attended a birthday party with some fifty to sixty young people for sixteen-year-old Cheryl Smith in the basement of her home in Roebling, New Jersey. At about 12 a.m., Bridges had an argument with another guest, Andy Strickland. Shortly after the heated exchange, Bridges left the party, yelling angrily into the basement that he would soon return with his “boys.” As he drove past the house on his way to Trenton, Bridges again shouted, “I’m going back to Trenton to get my niggers.”

The student quoted the word, I take it on the sensible theory that, when you’re studying court cases, you’re entitled to talk accurately about what those court cases say. And the material appears to have been quite closely linked to the topic of the discussion (“the circumstances under which a criminal defendant could be held liable for crimes committed by his co-conspirators”).

The N.Y. Times (Tracey Tully) reports what happened then:

In early April, in response to the incident, a group of Black first-year students at Rutgers Law began circulating a petition calling for the creation of a policy on racial slurs and formal, public apologies from the student and the professor, Vera Bergelson.

“At the height of a ‘racial reckoning,’ a responsible adult should know not to use a racial slur regardless of its use in a 1993 opinion,” states the petition, which has been signed by law school students and campus organizations across the country.

“We vehemently condemn the use of the N-word by the student and the acquiescence of its usage,” the petition says.

Professor Bergelson, 59, has said that she did not hear the word spoken during the videoconference session, which three students attended after a criminal law class, and would have corrected the student if she had.

Soon after the professor’s office hours in late October, a white classmate contacted the student who quoted the epithet to say that she should have avoided using it.

The student, a middle-age woman studying law as a second career, offered her phone number to continue the discussion and also arranged for a lengthy conversation with the third student, her lawyer said.

One of the students later told a Black classmate; a recording of the meeting, which is no longer accessible, was discovered online and shared.

Black students from the class who were offended by the slur expressed their concerns to another professor, who alerted a dean, David Lopez, soon after the incident, several officials said.

There’s a lot more in the article; those who have read my previous posts on similar controversies, or Randy’s and my just-published article (“The New Taboo: Quoting Epithets in the Classroom and Beyond”), know what I generally think of all this. But here I just wanted to mention a few items:

[1.] Though one of the Rutgers co-Deans, David Lopez, asked that people not quote such slurs, even when discussing a precedent that mentions them (“I share the views of several of our faculty members who understand and express to their students that this language is hateful and can be triggering, even in the context of a case, and ask that it not be used”), I’m glad to say that several Rutgers professors have publicly disagreed:

Among the professors who have signed a statement in support of Professor Bergelson and the student are some of the school’s most prominent faculty members, including [former Rutgers deans] John Farmer Jr., a former New Jersey attorney general, and Ronald K. Chen, the state’s onetime public advocate….

“Although we all deplore the use of racist epithets,” said Gary L. Francione, a law professor who also signed the statement, “the idea that a faculty member or law student cannot quote a published court decision that itself quotes a racial or other otherwise objectionable word as part of the record of the case is problematic and implicates matters of academic freedom and free speech.” …

Prof. Adam Scales is also expressly quoted as someone who opposes any such expurgation policy. So is Prof. Dennis M. Patterson, who is quoted specifically as to the unconstitutionality of outright prohibitions on such quotes. Others have similarly spoken out this way to their colleagues.

[2.] I’m also pleased to say that Prof. Bergelson and the student have refused to provide the public written apologies that other students have demanded. Prof. Bergelson, who was born in the Soviet Union, mentioned to me (in response to an e-mail I sent her) “the similarity between this attack on me and the Soviet collective condemnations and public self-accusations”; that was part of the reason for her refusing to apologize, I think.

And she should know: Her grandmother was executed by Stalin’s regime in 1950, and another relative, the Yiddish writer David Bergelson, was executed in 1952 in the Night of the Murdered Poets. I can’t speak for her, but I have often thought to myself: When others have paid so dearly for speaking the way they thought was right, how can we give in when the danger to us is so comparatively small?

The student is also represented by Samantha Harris, a leading campus free speech litigator (formerly at the Foundation for Individual Rights in Education). That too is very good, I think: Having an experienced free speech lawyer who can point out to the university the perils of violating students’ rights is very helpful. (I don’t know the details on how the legal representation is being funded.)

[3.] Finally, this incident reminds me just how quickly some supposedly narrow restrictions can slip into much broader ones.

When I was involved in a similar controversy a year ago, people told me: Of course this word is mentioned elsewhere in the legal system, for instance when clients or witnesses testify about it or talk about it when being interviewed. But it’s different when a professor, who is in a position of power in the classroom, says it. Yet of course once one rejects the use-mention distinction, and treats quoting a slur as forbidden, that applies equally to all speakers. And sure enough, here a student with no classroom power is being hounded as well.

Others told me: Sure, the word is written and can be written, but it shouldn’t be said out loud. But of course once one rejects the use-mention distinction, that logic applies to speaking as well as writing. (Surely we’d agree, for instance, that sending someone an e-mail calling them a “kike” or “nigger” or what have you is reprehensible, because writing really isn’t that different from speech in this respect.) And indeed, as Randy’s and my article chronicles, in just the last year we’ve seen a flurry of cases where professors were condemned for writing the word.

Others told me: Look, it’s just one word that you shouldn’t say; you’d be free to quote all other words, but this word is different. But of course that logic can’t hold, either; as Randy’s and my article chronicles, in just the last year we’ve seen similar demands to expurgate the word “fag” (which has a starring role in the most important recent Supreme Court case on offensive speech, Snyder v. Phelps (2011); the Westboro Baptist Church there displayed various signs near dead soldiers’ funerals, including “God Hates Fags”).

Plus, if the theory is that slurs are traumatizing because they bring up mental images of bigoted violence, then surely discussions of actually bigoted violence (slavery, lynching, hate crimes, and the like) could do the same, and face similar calls for expurgation. And, sure enough, since I started to blog about this matter, we’ve seen exactly such calls; for instance, as we note in our article,

Others have faulted professors who “expose Black students to images and videos of brutalized Black bodies … and explore texts that detail Black suffering” alongside those who “say the n-word without hesitation” (in quoting materials such as “white LGBTQ activist Carl Wittman’s ‘A Gay Manifesto'”). Likewise, the Oxford University student union adopted a policy called “Protection of Transgender, Non-binary, Disabled, Working-class, and Women* Students from Hatred in University Contexts,” demanding the removal of “ableist, misogynistic, classist or transphobic” “hate speech” from any course reading materials.

But that just focuses on slippage that we predicted; there’s so much we couldn’t even predict, because it would have seemed so far-fetched. How about a dean (who is also the president of the American Association of Law Schools) condemning a professor for being “deeply offensive,” “caus[ing] hurt and distress,” producing “mental trauma,” and “demonstrat[ing] a lack of respect, decency, and civility,” because the professor had written “n_____” and “b____” in a fact pattern on a law school exam? As you might gather from knowing my work on this, I’m not expurgating the words here; the exam really did just say “n_____” and “b____,” in a problem related to a racial and sexual discrimination lawsuit. So apparently even expurgating doesn’t get you off the hook.

Or how about the Great USC Homonym Panic of 2020, where an accomplished business school lecturer was replaced in his course in the middle of the semester because he quoted—in the middle of a lecture on filler words (such as “um” or “er”) in a business communication class—the Chinese filler word nei-ge? His sin was that this Chinese word, which he mentioned as an example because he’s an expert on U.S.-China business and a fluent Mandarin speaker, sounds like “nigger” in English.

If Randy and I had come up with this as a hypothetical consequence of placing a taboo on certain words, I expect we would have been roundly condemned as creating a ridiculously unrealistic straw-man scenario. And yet there it is. We prefer to “avoid these ends by avoiding these beginnings.”

Of course, perhaps Randy and I are mistaken. Perhaps some version of the New Taboo ought indeed be adopted in law school classrooms. Perhaps faculty and students teaching and studying a subject should be forbidden, whether by rule or by social norm, from accurately talking about the source materials (precedents, court records, and the like) of that very subject.

But I’d like those who disagree with us to say a bit more about how the taboo is to remain contained (or even whether they want it to be contained). And I hope that those who are considering whether to accede to the taboo will consider how far it is likely to spread.

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The robot apocalypse—and you!

Our interview is with Kevin Roose, author of Futureproof: 9 Rules for Humans in the Age of Automation. Kevin debunks most of the comforting stories we use to anaesthetize ourselves to the danger that artificial intelligence and digitization pose to our jobs. Luckily, he also offers some practical and very personal ideas for how to avoid being caught in the oncoming robot apocalypse.

 In the news roundup, Dmitri Alperovich and I take a few moments to honor Dan Kaminsky, an extraordinary internet security and even more extraordinarily decent man. He died too young, at 42, as Nicole Perlroth demonstrates in one of her career-best articles. 

 Maury Shenk and Mark MacCarthy lay out the EU’s plan to charge Apple with anti-competitive behaviour in running its app store. Under regulation-friendly EU competition law, rather than the more austere US version, it sure looks as though Apple is going to have trouble escaping unscathed. 

 Mark and I duke it out over Gov. DeSantis’s Florida bill on content moderation reform. We agree that it will be challenged as a violation of the First Amendment and as preempted by federal section 230. Mark thinks it will fail that test. I don’t, especially if the challenge ends up in the Supreme Court, where Justice Thomas at least has already put out the “Welcome” mat.  

 Dmitri and I puzzle over the statement by top White House cyber official Anne Neuberger that the US reprisals against Russia are so far not enough to deter further cyberattacks.  We decide it’s a “Kinsley gaffe” – where a top official inadvertently utters an inconvenient truth.

 This Week in Information Operations: Maury explains that China may be hyping America’s racial tensions not as a tactic to divide us but simply because it’s an irresistible comeback to US criticisms or Chinese treatment of ethnic minorities. And Dmitri explains why we shouldn’t be surprised at Russia’s integrated use of hacking and propaganda. The real question is why the US has been so bad at the same work.

 In shorter pieces:

And more!

Download the 360th Episode (mp3) 

 You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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Prof. John McWhorter (Columbia) on “People Getting Fired for Referring to the N-Word—Activism or Performance Art?”

You can read the item here; I believe it’s accessible to non-subscribers. I’ve long loved Prof. McWhorter’s lectures and podcasts on language, and his written work is similarly thoughtful and readable. Here are his concluding paragraphs (for those who don’t know his work, he uses “Elect” to refer to adherents to what he sees as the quasi-religion of “anti-racism”):

Many ask why black people give whites the power to harm us so easily with this word. I for one have never and never will see it as a badge of strength to announce to white America that uttering a sequence of sounds will send me into therapy. I’d be embarrassed if it did, and that is what I call Black Power.

But I know I am missing the point. This performative transformation of the N-word into a taboo term affords a kind of power: black Elects get a way of getting back at whites by destroying their careers; white Elects spectating get to show they aren’t racists by cheering on the witch-hunting. To these people all of this feels healthy, active, restoring, noble.

But the problem is that while it may feel that way to them, to the rest of us – among whom are legions of thoroughly reasonable, intelligent, concerned, and sensitive persons of all races  – this new take on the N-word looks paranoid, fake, and mean.

What kind of antiracism is that?

The newsletter page, where you can subscribe (or read without subscribing), is here.

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Rutgers Law Students Calling for a “Policy” on Students and Faculty Quoting Slurs from Court Cases

As Prof. Randall Kennedy and I have noted, slurs (“nigger,” “nigga,” “fag,” “cunt,” “kike,” “spic,” etc.) appear in over 10,000 court cases available on Westlaw, as well as a vast number of briefs and other court filings (most of which aren’t even visible on Westlaw).

Unsurprisingly, after class last Fall, a student at Rutgers Law School in New Jersey asked a professor about one of those 10,000+ cases—State v. Bridges (1993), decided by the New Jersey Supreme Court. The passage, from which the student quoted part of the last sentence, reads:

On September 2, 1988, defendant, Bennie Eugene Bridges, attended a birthday party with some fifty to sixty young people for sixteen-year-old Cheryl Smith in the basement of her home in Roebling, New Jersey. At about 12 a.m., Bridges had an argument with another guest, Andy Strickland. Shortly after the heated exchange, Bridges left the party, yelling angrily into the basement that he would soon return with his “boys.” As he drove past the house on his way to Trenton, Bridges again shouted, “I’m going back to Trenton to get my niggers.”

The student quoted the word, I take it on the sensible theory that, when you’re studying court cases, you’re entitled to talk accurately about what those court cases say. And the material appears to have been quite closely linked to the topic of the discussion (“the circumstances under which a criminal defendant could be held liable for crimes committed by his co-conspirators”).

The N.Y. Times (Tracey Tully) reports what happened then:

In early April, in response to the incident, a group of Black first-year students at Rutgers Law began circulating a petition calling for the creation of a policy on racial slurs and formal, public apologies from the student and the professor, Vera Bergelson.

“At the height of a ‘racial reckoning,’ a responsible adult should know not to use a racial slur regardless of its use in a 1993 opinion,” states the petition, which has been signed by law school students and campus organizations across the country.

“We vehemently condemn the use of the N-word by the student and the acquiescence of its usage,” the petition says.

Professor Bergelson, 59, has said that she did not hear the word spoken during the videoconference session, which three students attended after a criminal law class, and would have corrected the student if she had.

Soon after the professor’s office hours in late October, a white classmate contacted the student who quoted the epithet to say that she should have avoided using it.

The student, a middle-age woman studying law as a second career, offered her phone number to continue the discussion and also arranged for a lengthy conversation with the third student, her lawyer said.

One of the students later told a Black classmate; a recording of the meeting, which is no longer accessible, was discovered online and shared.

Black students from the class who were offended by the slur expressed their concerns to another professor, who alerted a dean, David Lopez, soon after the incident, several officials said.

There’s a lot more in the article; those who have read my previous posts on similar controversies, or Randy’s and my just-published article (“The New Taboo: Quoting Epithets in the Classroom and Beyond”), know what I generally think of all this. But here I just wanted to mention a few items:

[1.] Though one of the Rutgers co-Deans, David Lopez, asked that people not quote such slurs, even when discussing a precedent that mentions them (“I share the views of several of our faculty members who understand and express to their students that this language is hateful and can be triggering, even in the context of a case, and ask that it not be used”), I’m glad to say that several Rutgers professors have publicly disagreed:

Among the professors who have signed a statement in support of Professor Bergelson and the student are some of the school’s most prominent faculty members, including [former Rutgers deans] John Farmer Jr., a former New Jersey attorney general, and Ronald K. Chen, the state’s onetime public advocate….

“Although we all deplore the use of racist epithets,” said Gary L. Francione, a law professor who also signed the statement, “the idea that a faculty member or law student cannot quote a published court decision that itself quotes a racial or other otherwise objectionable word as part of the record of the case is problematic and implicates matters of academic freedom and free speech.” …

Prof. Adam Scales is also expressly quoted as someone who opposes any such expurgation policy. So is Prof. Dennis M. Patterson, who is quoted specifically as to the unconstitutionality of outright prohibitions on such quotes. Others have similarly spoken out this way to their colleagues.

[2.] I’m also pleased to say that Prof. Bergelson and the student have refused to provide the public written apologies that other students have demanded. Prof. Bergelson, who was born in the Soviet Union, mentioned to me (in response to an e-mail I sent her) “the similarity between this attack on me and the Soviet collective condemnations and public self-accusations”; that was part of the reason for her refusing to apologize, I think.

And she should know: Her grandmother was executed by Stalin’s regime in 1950, and another relative, the Yiddish writer David Bergelson, was executed in 1952 in the Night of the Murdered Poets. I can’t speak for her, but I have often thought to myself: When others have paid so dearly for speaking the way they thought was right, how can we give in when the danger to us is so comparatively small?

The student is also represented by Samantha Harris, a leading campus free speech litigator (formerly at the Foundation for Individual Rights in Education). That too is very good, I think: Having an experienced free speech lawyer who can point out to the university the perils of violating students’ rights is very helpful. (I don’t know the details on how the legal representation is being funded.)

[3.] Finally, this incident reminds me just how quickly some supposedly narrow restrictions can slip into much broader ones.

When I was involved in a similar controversy a year ago, people told me: Of course this word is mentioned elsewhere in the legal system, for instance when clients or witnesses testify about it or talk about it when being interviewed. But it’s different when a professor, who is in a position of power in the classroom, says it. Yet of course once one rejects the use-mention distinction, and treats quoting a slur as forbidden, that applies equally to all speakers. And sure enough, here a student with no classroom power is being hounded as well.

Others told me: Sure, the word is written and can be written, but it shouldn’t be said out loud. But of course once one rejects the use-mention distinction, that logic applies to speaking as well as writing. (Surely we’d agree, for instance, that sending someone an e-mail calling them a “kike” or “nigger” or what have you is reprehensible, because writing really isn’t that different from speech in this respect.) And indeed, as Randy’s and my article chronicles, in just the last year we’ve seen a flurry of cases where professors were condemned for writing the word.

Others told me: Look, it’s just one word that you shouldn’t say; you’d be free to quote all other words, but this word is different. But of course that logic can’t hold, either; as Randy’s and my article chronicles, in just the last year we’ve seen similar demands to expurgate the word “fag” (which has a starring role in the most important recent Supreme Court case on offensive speech, Snyder v. Phelps (2011); the Westboro Baptist Church there displayed various signs near dead soldiers’ funerals, including “God Hates Fags”).

Plus, if the theory is that slurs are traumatizing because they bring up mental images of bigoted violence, then surely discussions of actually bigoted violence (slavery, lynching, hate crimes, and the like) could do the same, and face similar calls for expurgation. And, sure enough, since I started to blog about this matter, we’ve seen exactly such calls; for instance, as we note in our article,

Others have faulted professors who “expose Black students to images and videos of brutalized Black bodies … and explore texts that detail Black suffering” alongside those who “say the n-word without hesitation” (in quoting materials such as “white LGBTQ activist Carl Wittman’s ‘A Gay Manifesto'”). Likewise, the Oxford University student union adopted a policy called “Protection of Transgender, Non-binary, Disabled, Working-class, and Women* Students from Hatred in University Contexts,” demanding the removal of “ableist, misogynistic, classist or transphobic” “hate speech” from any course reading materials.

But that just focuses on slippage that we predicted; there’s so much we couldn’t even predict, because it would have seemed so far-fetched. How about a dean (who is also the president of the American Association of Law Schools) condemning a professor for being “deeply offensive,” “caus[ing] hurt and distress,” producing “mental trauma,” and “demonstrat[ing] a lack of respect, decency, and civility,” because the professor had written “n_____” and “b____” in a fact pattern on a law school exam? As you might gather from knowing my work on this, I’m not expurgating the words here; the exam really did just say “n_____” and “b____,” in a problem related to a racial and sexual discrimination lawsuit. So apparently even expurgating doesn’t get you off the hook.

Or how about the Great USC Homonym Panic of 2020, where an accomplished business school lecturer was replaced in his course in the middle of the semester because he quoted—in the middle of a lecture on filler words (such as “um” or “er”) in a business communication class—the Chinese filler word nei-ge? His sin was that this Chinese word, which he mentioned as an example because he’s an expert on U.S.-China business and a fluent Mandarin speaker, sounds like “nigger” in English.

If Randy and I had come up with this as a hypothetical consequence of placing a taboo on certain words, I expect we would have been roundly condemned as creating a ridiculously unrealistic straw-man scenario. And yet there it is. We prefer to “avoid these ends by avoiding these beginnings.”

Of course, perhaps Randy and I are mistaken. Perhaps some version of the New Taboo ought indeed be adopted in law school classrooms. Perhaps faculty and students teaching and studying a subject should be forbidden, whether by rule or by social norm, from accurately talking about the source materials (precedents, court records, and the like) of that very subject.

But I’d like those who disagree with us to say a bit more about how the taboo is to remain contained (or even whether they want it to be contained). And I hope that those who are considering whether to accede to the taboo will consider how far it is likely to spread.

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The robot apocalypse—and you!

Our interview is with Kevin Roose, author of Futureproof: 9 Rules for Humans in the Age of Automation. Kevin debunks most of the comforting stories we use to anaesthetize ourselves to the danger that artificial intelligence and digitization pose to our jobs. Luckily, he also offers some practical and very personal ideas for how to avoid being caught in the oncoming robot apocalypse.

 In the news roundup, Dmitri Alperovich and I take a few moments to honor Dan Kaminsky, an extraordinary internet security and even more extraordinarily decent man. He died too young, at 42, as Nicole Perlroth demonstrates in one of her career-best articles. 

 Maury Shenk and Mark MacCarthy lay out the EU’s plan to charge Apple with anti-competitive behaviour in running its app store. Under regulation-friendly EU competition law, rather than the more austere US version, it sure looks as though Apple is going to have trouble escaping unscathed. 

 Mark and I duke it out over Gov. DeSantis’s Florida bill on content moderation reform. We agree that it will be challenged as a violation of the First Amendment and as preempted by federal section 230. Mark thinks it will fail that test. I don’t, especially if the challenge ends up in the Supreme Court, where Justice Thomas at least has already put out the “Welcome” mat.  

 Dmitri and I puzzle over the statement by top White House cyber official Anne Neuberger that the US reprisals against Russia are so far not enough to deter further cyberattacks.  We decide it’s a “Kinsley gaffe” – where a top official inadvertently utters an inconvenient truth.

 This Week in Information Operations: Maury explains that China may be hyping America’s racial tensions not as a tactic to divide us but simply because it’s an irresistible comeback to US criticisms or Chinese treatment of ethnic minorities. And Dmitri explains why we shouldn’t be surprised at Russia’s integrated use of hacking and propaganda. The real question is why the US has been so bad at the same work.

 In shorter pieces:

And more!

Download the 360th Episode (mp3) 

 You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

 

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Raising the Refugee Cap Should Be Just the Start of Fixing America’s Inhumane Immigration Policy


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President Joe Biden on Monday announced he would move to increase the annual refugee cap set by former President Donald Trump, who had limited admissions to a historically low 15,000 refugees during his time in office.

Biden’s announcement came after he received heavy criticism last month when he revealed he would keep Trump’s cap in place after promising to expand it by more than 300 percent. Today he said he would reverse course again and attempt to meet that earlier promise, although he said it likely wouldn’t happen by September 30, the end of the fiscal year.

“Today, I am revising the United States’ annual refugee admissions cap to 62,500 for this fiscal year,” he said in a statement. “The sad truth is that we will not achieve [that goal] this year. We are working quickly to undo the damage of the last four years. It will take some time, but that work is already underway. We have reopened the program to new refugees. And by changing the regional allocations last month, we have already increased the number of refugees ready for departure to the United States.”

The president’s April announcement confused many, not least of which because his purported explanation didn’t square with reality. The New York Times reported that his administration cited the influx of unaccompanied migrant children at the border as putting too much of a strain on the refugee system.

“The refugee program and the unaccompanied child program are separate items in the HHS budget,” David Bier, a research fellow at the Cato Institute’s Center for Global Liberty and Prosperity, told me last month. “This is purely about politics.”

Biden has received quite a bit of heat for his policies at the border. As I wrote last month, he’s already broken a campaign promise to halt the confiscation of private property for border wall construction. The Biden administration has also made certain parts of the asylum system even more restrictive than his predecessor and is defending Immigration and Customs Enforcement (ICE) in court after the agency erected a fake university, defrauded immigrants out of the tuition money, and deported them without refunds.

Today, however, it appears Biden is attempting to honor a campaign promise, even if it was the result of public pressure. “President Trump’s decision to close America’s doors to refugees fleeing persecution is cruel and shortsighted,” Biden said in November 2019. “As president, I will restore America’s historic commitment to welcoming those whose lives are threatened by conflict and crisis.”

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Raising the Refugee Cap Should Be Just the Start of Fixing America’s Inhumane Immigration Policy


sipaphotoseleven064217

President Joe Biden on Monday announced he would move to increase the annual refugee cap set by former President Donald Trump, who had limited admissions to a historically low 15,000 refugees during his time in office.

Biden’s announcement came after he received heavy criticism last month when he revealed he would keep Trump’s cap in place after promising to expand it by more than 300 percent. Today he said he would reverse course again and attempt to meet that earlier promise, although he said it likely wouldn’t happen by September 30, the end of the fiscal year.

“Today, I am revising the United States’ annual refugee admissions cap to 62,500 for this fiscal year,” he said in a statement. “The sad truth is that we will not achieve [that goal] this year. We are working quickly to undo the damage of the last four years. It will take some time, but that work is already underway. We have reopened the program to new refugees. And by changing the regional allocations last month, we have already increased the number of refugees ready for departure to the United States.”

The president’s April announcement confused many, not least of which because his purported explanation didn’t square with reality. The New York Times reported that his administration cited the influx of unaccompanied migrant children at the border as putting too much of a strain on the refugee system.

“The refugee program and the unaccompanied child program are separate items in the HHS budget,” David Bier, a research fellow at the Cato Institute’s Center for Global Liberty and Prosperity, told me last month. “This is purely about politics.”

Biden has received quite a bit of heat for his policies at the border. As I wrote last month, he’s already broken a campaign promise to halt the confiscation of private property for border wall construction. The Biden administration has also made certain parts of the asylum system even more restrictive than his predecessor and is defending Immigration and Customs Enforcement (ICE) in court after the agency erected a fake university, defrauded immigrants out of the tuition money, and deported them without refunds.

Today, however, it appears Biden is attempting to honor a campaign promise, even if it was the result of public pressure. “President Trump’s decision to close America’s doors to refugees fleeing persecution is cruel and shortsighted,” Biden said in November 2019. “As president, I will restore America’s historic commitment to welcoming those whose lives are threatened by conflict and crisis.”

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