Month: June 2023

The article is here; here’s the Introduction:

Political scientist and ethicist Russell Hardin observed that “trust depends on two quite different dimensions: the motivation of the potentially trusted person to attend to the truster’s interests and his or her competence to do so.” Our willingness to trust an actor thus generally turns on inductive reasoning: our perceptions of that actor’s motives and competence, based on our own experiences with that actor. Trust and distrust are also both episodic and comparative concepts, as whether we trust a particular actor depends in part on when we are asked—and to whom we are comparing them. And depending on our experience, distrust is sometimes wise: “[D]istrust is sometimes the only credible implication of the evidence. Indeed, distrust is sometimes not merely a rational assessment but it is also benign, in that it protects against harms rather than causing them.”

Actors and institutions thus cannot control whether others trust them. So in this Essay, I focus not on how to encourage the public to trust the media, but instead on how to encourage the media to do what it can control—in other words, to behave in ways that demonstrate its trustworthy motives and competence.

To be sure, different communities find different behaviors indicative of trustworthiness, and thus the media’s choice to behave in ways that some communities find trustworthy may simultaneously inspire other communities’ distrust. For example, as demonstrated by an exhaustive study conducted by information and technology scholars Yochai Benkler, Robert Faris, and Hal Roberts, some contemporary media cultures value, and thus trust, media institutions that privilege truth-seeking—while others trust those that simply confirm identity:

Media and politicians have the option to serve their audiences and followers by exclusively delivering messages that confirm the prior inclinations of their constituents, or by also including true but disconfirming news when the actual state of the world does not conform to partisan beliefs. For media, this is the key distinction between partisan media and objective media.

In other words, different media ecosystems confer, and receive, trust for different behaviors and different end goals.

This Essay addresses media behaviors that are likely considered trustworthy in media cultures that reward truth-seeking rather than identity confirmation. It thus leaves aside the even more difficult problem of how to encourage other ecosystems to reward truth-seeking even when truth disconfirms identity.

To start, consider how the media’s self-interest and incompetence (both real and perceived) create barriers to its trustworthiness. More specifically, self-interest is among the motives that trigger distrust: we find it hard to trust self-interested actors to act in ways attentive to our own interests. The media’s potential for self-interest thus often fuels the public’s distrust, just as governmental actors’ self-interest also often triggers the public’s distrust.

When I speak of the media’s potential for self-interest, I refer to the media’s need to do whatever it takes to survive financially, especially in today’s destabilized media environment. Concerns about the media’s motives include perceptions that it is all too willing to invade privacy, oversensationalize, or cater to advertisers’ preferences for self-gain—in other words, to exploit others to capture users’ attention and engagement to protect its economic bottom line.

Self-interested (and thus untrustworthy) media behaviors include the deployment of platform designs and interfaces that collect, aggregate, and analyze data about us in ways that enable them to influence our choices. To be sure, sometimes such designs and interfaces give us more of what we want. But too often they manipulate us—in other words, they influence our behavior in ways that we would resist if we were aware of these efforts. Nobody wants to be manipulated, especially when we understand manipulation (as a number of ethicists do) to mean a hidden effort to target and exploit our vulnerabilities. Yet the contemporary speech environment enables that sort of manipulation in unprecedented ways. The news media is by no means immune, as press law scholar Erin Carroll has documented the substantial extent to which news organizations collect—and allow others to collect—data about their online readers. Indeed, some news organizations “are even trying to predict how a particular piece of news might make a reader feel and to target advertising accordingly.”

These manipulative technologies also enable microtargeting that increases the likelihood that certain speech will cause harm, because “it is not subject to regulatory scrutiny, not subject to meaningful widespread public scrutiny and because [] false claims in such political ads are likely to be spread farther, faster, deeper, and more broadly than true claims in political ads.” So too does the amplification enabled by new technologies increase the likelihood that falsehoods or similarly destructive expressive choices will spread farther, faster, and more effectively.

The media’s failure to demonstrate “respect for and knowledge of their readers and communities” also triggers suspicion of its motives and competence. Consider, for instance, how public perceptions (accurate or not) that the media is arrogant towards, or disinterested in, its audience cast doubt on its willingness and ability to invest in and engage with that audience. Those who are less powerful cannot afford to trust those who are more powerful without meaningful constraints in place. (To be sure, those perceived as more powerful do not always perceive themselves as such; nevertheless, perceptions of relative power contribute to dynamics of trust and distrust.)

What does it mean for an actor to behave in trustworthy ways? Constitutional law often asks this question with respect to the government, devising doctrinal rules more suspicious of the government in contexts where courts perceive the government as untrustworthy. In the First Amendment context, for instance, experience suggests that the government is least likely to behave in trustworthy ways in settings where it may be self-interested, intolerant, or clumsy (as can be the case where it draws malleable lines absent adequate information or expertise). Conversely, the government is more likely to behave in trustworthy ways in settings where its discretion is limited, where we don’t see evidence of a self-interested or intolerant motive, or where the setting leaves us even more distrustful of powerful and unrestrained private actors than we are of the government.

This may also be the case of the media. The remainder of this Essay seeks to spur additional thinking about what it means for the media to behave in trustworthy ways. In so doing, it flags a handful of possibilities for checking the media’s potential to act in its own self-interest and for demonstrating its competence—sketching a menu of options (rather than detailing or exhausting them) that variously rely on markets, norms and architecture, and law.

The post Journal of Free Speech Law: "Getting to Trustworthiness (But Not Necessarily to Trust)," by Prof. Helen Norton appeared first on Reason.com.

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The first panel, on Trusted Communicators, is up, at JournalOfFreeSpeechLaw.org; we’ll be posting the other panels over the next several days. Here’s the Introduction, by both of the editors:

The internet has remade both the media and the social institutions that surround the media. Speech was not cheap in the twentieth century. News organizations had to buy newsprint, paper, distribution networks, transmitters, spectrum licenses—all kinds of things that cost much more than a Facebook page—if they wished to reach an audience. But the few news organizations that could cover these costs held a safe market position, and from this perch, they wielded a great deal of epistemic and moral authority in their communities. They became “gatekeepers” with the power and the responsibility to decide what information, and what claims, were fit to print. Much of media law, and particularly First Amendment law, seems to have developed around the assumption that news organizations could and would play this gatekeeping role, and that the government should therefore rarely need to.

That world is gone. Competition from the internet and social media has decimated the business model that underwrote the twentieth century’s gatekeepers. And those twentieth-century media institutions that have survived disruption—institutions such as the New York Times or the major television networks—are in no position to play gatekeeper. News consumers mostly get whatever flavor of “news” they wish, and individual speakers mostly decide what kind of speech is fit to post. There are gatekeepers in this environment, but they are institutions like Facebook, TikTok, or YouTube that bear little resemblance to yesterday’s news giants and that wield their power in ways that lack any clear twentieth-century analog. The law is only beginning to catch up.

This project gathers sixteen scholars in law, media, technology, and history to consider these changes together. We divided into four groups of four, with each group considering one broad facet of the situation. The Essays gathered here as a symposium will ultimately be published as a book through Cambridge University Press, Media and Society After Technological Disruption.

Group 1: Trusted Communicators

We asked this group to write on the decline in trust that traditional media institutions have suffered in recent years. Authors reflected on the implications of this decline in trust for media’s ability to shape and convene public discourse. They also considered the causes of this loss in trust, and what might be done to get it back.

Group 2: Defamation and Privacy

This group of authors wrote on the law’s role in policing communications that inflict privacy and reputational harms. This group paid particular attention to the role of technological development in driving a proliferation of harmful speech, and also to the law’s emergent response.

Group 3: Platform Governance

We assigned this group to write on tech platforms and the role they play as private regulators of the content they host. Authors wrote on how this regulation plays out in practice, and more generally, on its costs, benefits, and risks. The group also considered changes to regulatory or technical architecture that may improve the system of content moderation that is in place today.

Group 4: Sustaining Journalistic Institutions

This final group wrote on traditional media institutions’ struggle to maintain financial solvency in the twenty-first century. Authors compared the failure of some models (newspapers) with the successes of others (television, social media), and considered various regulatory proposals to stanch the losses.

* * *

This has been an ambitious, complex project, and it would not have been possible without the substantial financial support that the Nebraska Governance and Technology Center received from the John S. and James L. Knight foundation. Nor would it have been possible without the institutional support of the University of Nebraska and its College of Law, which housed the Nebraska Governance and Technology Center. Finally, we wish to thank the many assistant researchers and editors who supported us at various stages on this project, and in particular Sarah Burns, the late-stage editor who consolidated these essays into a single work and whose thousands of small, sharp edits elevated the material in so many ways.

The post Journal of Free Speech Law Publishing Symposium on "Media and Society After Technological Disruption" appeared first on Reason.com.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Section 2 of the 14th Amendment punishes states that abridge the right to vote by taking away their seats in the U.S. House of Representatives. Or at least that’s what the Amendment was supposed to do, but the Census Bureau has never gotten around to doing its constitutional duty. So says special guest Jared Pettinato.

• Purdue Pharma L.P. and its owners, the Sackler family, made a mint selling OxyContin as a non-addictive pain reliever. When it turned out to be highly addictive, Purdue and the Sacklers faced an avalanche of lawsuits with claims estimated at more than $40 tril. Purdue declared bankruptcy. Following mediation, the bankruptcy court approved a plan in which the Sacklers would contribute $5.5-6 bil to the bankruptcy estate in exchange for release from liability to nonconsenting third parties, but the district court rejected the plan as not authorized by the Bankruptcy Code. Second Circuit: We think it’s fine. Concurrence: Well, we’ve held that this sort of release from liability is fine, but pointing to anything in the Bankruptcy Code that authorizes it is another matter.
• Virginia Tech has a Bias Intervention and Response Team (BIRT) policy that encourages students to narc on any “expressions against a person or group because of the person’s or group’s age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” Speech First, a nonprofit that promotes student rights, challenges the policy as a violation of the First Amendment and seeks a preliminary injunction, which the district court denies. Fourth Circuit: Since the BIRT has no disciplinary power and can, at most, invite complained-against students to participate in a voluntary conversation with the complaining student, there’s no injury. Dissent: “Does the majority really believe this invite is no different from students inviting one another to drop by down the hall for a Friday night pizza? No!”
• In 1991, a woman and her 13-year-old daughter are found raped and murdered in their Durham, N.C. apartment. A man is convicted solely on the basis of contradictory eyewitness testimony (at the hands of since-disbarred prosecutor Michael Nifong) and spends 21 years in prison—until DNA exonerates him and he’s released. He sues, and a jury awards him $6 mil against one of the police officers. Fourth Circuit: Sounds right, though (over a partial dissent) a jury should consider whether two more officers should be liable for their role in suppressing a 2011 interview of the DNA match.
• After woman is accused of egging her neighbors’ car (one of many such incidents of feuding between the two families), Harris County, Tex. officers allegedly enter her home without consent and push her into a chair while handcuffing her, causing bruising. They issue her a citation and leave. Fifth Circuit: Could be an unlawful entry or illegal search or excessive force. No QI. Partial dissent: No way that a little bruising during cuffing is excessive force; the “majority mocks the law of QI.” And does so in an unpublished per curiam opinion two years after oral argument!
• During public meeting (on Zoom), a resident criticizes Grand Traverse County, Mich. commissioners for endorsing the Proud Boys and asks them to disavow political violence. Instead, one of them displays a high-powered rifle and smirks. Sixth Circuit: No qualified immunity. Dissent: “The question … is not whether [the resident] had a clearly established right to be free from retaliation for exercising her First Amendment rights; it is whether she had a clearly established right to be free from the display of a rifle (or equivalent actions) during a virtual Board of Commissioners meeting.”
• A week after being sworn in, Starke County, Ind. councilman attends a state conference where he allegedly says that he was an active member of the Aryan Brotherhood and, using vulgar epithets, described racial and religious groups that he wished to expel from the county. The County Council quickly expels him, and he sues. Indiana Court of Appeals: If we can’t make sense of your arguments, you lose. Seventh Circuit (unpublished): If you lose in state court, you can’t litigate the claim in federal court.
• In 2018, a duck boat capsizes on a lake in the Ozarks, killing 17 people. The feds charge the captain and managers with seaman’s manslaughter, but the district court dismisses the indictment: Because the lake isn’t used for commercial shipping, the feds lack admiralty jurisdiction. Eighth Circuit: That’s so until Congress says otherwise, which it hasn’t. Moreover, the indictment doesn’t say anything about interstate commerce, so it’s too late to argue the Commerce Clause permits the prosecution. Dissent: Commerce is everywhere.
• Man convicted of being a felon in possession of a firearm and sentenced to nine years in prison: My prior offenses don’t indicate that I am any more dangerous than the average law-abiding citizen. The felon-in-possession ban violates the Second Amendment as applied to me. Eighth Circuit: Nope, there’s no need for an individualized determination of dangerousness.
• Chino Hills, Calif. woman, who stopped taking her schizophrenia medication due to her pregnancy, suffers mental breakdown leading to her arrest. She’s taken to the county jail and placed in a safe room. Nonetheless, she attempts suicide, leading to her and her baby’s deaths. Ninth Circuit (unpublished): Her claims against the county and the officers responsible for her care should not have been dismissed.
• California prosecutor to star witness: You are aware that under California law, if you perjure yourself to procure a death sentence for the defendant, you yourself may be subject to the death penalty. Star witness: I am. Prosecutor: [Proceeds to knowingly elicit perjured testimony, which leads the jury to find special circumstances warrant the death penalty.] Ninth Circuit: And he oughtn’t have done that, so we grant habeas as to the special circumstances findings and imposition of the death penalty—a mere 32 years after they were entered.
• Man drives his blindfolded wife to a surprise anniversary dinner. Yikes! A 911 caller reports a possible abduction. Fountain Valley, Calif. police head to the man’s home and encounter his mother, father, brother, and daughters, ultimately resulting in grandpa being taken to ground. Ninth Circuit: The law protects good-faith efforts to investigate a potential kidnapping. Partial dissent: Could have been an unlawful seizure.
• In a putative derivative action, plaintiff alleges that The Gap misled shareholders about its commitment to diversity (in violation of the Securities Exchange Act of 1934). And the Ninth Circuit (sitting en banc and creating a circuit split) holds that the company’s forum-selection bylaws … well, anyway, the suit is dismissed. The five-judge dissent, meanwhile, says companies can now ensure that such actions can only be brought in state court, which do not have jurisdiction to hear them, a “litigation bridge to nowhere.”
• Allegation: At the behest of a neighborhood busybody, Dekalb County, Ga. officials shut down an Ethiopian restaurant for code violations (even after extensive efforts to come into compliance)—part of a pattern of selective enforcement against Black-owned-and-patronized establishments. District court: Whoa, no qualified immunity. Eleventh Circuit (unpublished): In fact, it’s not clearly established that corporations can suffer racial discrimination as they don’t, strictly speaking, have a “race.” So qualified immunity for the officials. The restaurant’s case against the county can proceed, however.
• And in en banc news, the Ninth Circuit will not reconsider its decision that federal courts lack jurisdiction to review the Attorney General’s discretionary decision that a particular noncitizen in immigration detention poses a danger to the community and so is not entitled to release on bond. Eleven (!) judges dissent from denial, and if that ain’t proof that the Ninth Circuit is too big, nothing is.

Victory! In 2016, Georgia legislators passed a law requiring lactation care providers to obtain the equivalent of a college degree. The law would have created an instant shortage of services (particularly in rural, low-income, and minority communities) and provided a windfall to the small subset of providers who lobbied for it. But this week, in a unanimous opinion, the Georgia Supreme Court ruled that the law violates the state constitution’s protections of the right to pursue a lawful occupation. Henceforth, in the face of substantial evidence that a service is safe and beneficial, officials will have to offer more than “speculation” to the contrary if they want to outlaw it. Click here to read more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

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This is the audio version of The Reason Livestream, which takes place every Thursday at 1 p.m. Eastern.

The guest on this week’s livestream was Dave Rubin, the host of The Rubin Report. A self-described classical liberal, Dave talked with Reason about why he’s supporting Florida Gov. Ron DeSantis for president. We cover a lot of ground, including DeSantis’s highly controversial and very successful handling of COVID, his disturbing willingness to use the government to punish corporations that cross him, and why Rubin has soured on Donald Trump, who he supported in 2016 and 2020.

Today’s sponsors:

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• The Reason Speakeasy. The Reason Speakeasy is a monthly, unscripted conversation in New York City with outspoken defenders of free thinking and heterodoxy. It doubles as a live taping of The Reason Interview podcast and always provides a great evening of camaraderie and conversation about cutting-edge topics and ideas. On June 5, Nick Gillespie talks with Fox News contributor Kat Timpf about her best-selling book, You Can’t Joke About That: Why Everything Is Funny, Nothing Is Sacred, and We’re All in This Together. Tickets are $10 and include beer, wine, soda, food, and plenty of time to talk about politics, culture, and ideas in one of the coolest settings in midtown Manhattan. For details, go here.

The post Dave Rubin: Why Libertarians Should Vote for Ron DeSantis appeared first on Reason.com.

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From today’s decision by Judge Paul Crotty (S.D.N.Y.) in Doe v. Gooding:

The Court previously … allow[ed] Plaintiff to proceed pseudonymously. However, in doing so, the Court noted that it was “skeptical that Plaintiff can overcome the presumption of public disclosure in the long run” and allowed for revisitation of the issue closer to trial. At a hearing on May 11, 2023, the Court once again raised the issue, and ordered Plaintiff to file a motion to maintain the pseudonym at trial. The Court now DENIES that motion, and ORDERS Plaintiff to file an amended complaint bearing her legal name.

Rule 10(a) of the Federal Rules of Civil Procedure mandates that pleadings contain the names of all parties. Fed. R. Civ. P. 10(a). Underlying this rule is the principle in favor of public access to court proceedings. See Lugosch v. Pyramid Co. of Onondaga (2d Cir. 2006) (“The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.”). When a Court considers the use of a pseudonym—depriving the public access to full information on the case—it must “balance[] the interests at stake in reaching its conclusion.” …

As the Court previously noted, the prejudice a defendant faces when a plaintiff uses a pseudonym increases when the parties go to trial. When a plaintiff proceeds under a pseudonym, the Court risks “giving [her] claim greater stature or dignity or otherwise confusing or distracting the jury.” Additionally, the use of a pseudonym risks confusing a jury, as “the jurors will likely construe the Court’s permission for the plaintiff to conceal her true identity as a subliminal comment on the harm the alleged encounter with the defendant has caused the plaintiff.”

Mostly sidestepping the issue of prejudice to Defendant at trial, Plaintiff focuses instead on the need “to protect [Plaintiff] from harassment, injury, ridicule or personal embarrassment.” Undeniably, Plaintiff has a privacy interest at stake, and the Court previously acknowledged that interest. But the newest evidence presented by Plaintiff does not change the Court’s calculation.

First, Plaintiff focuses on the comments and threats of Defendant’s former attorney, Mark Heller. Specifically, Heller called Plaintiff’s accusations “false and perjurious” and threatened to pursue criminal charges against several other women who accused Defendant of similar conduct. These comments are irrelevant as they date back years, the vast majority are targeted at Defendant’s other accusers, and Heller is no longer Defendant’s attorney. In fact, by Plaintiff’s own admission, Heller has been disbarred in New York and is unable to practice law. The threats of pursuing charges are therefore baseless and do not change the Court’s evaluation of the Sealed Plaintiff factors.

Second, Plaintiff highlights an incident at a recent hearing involving an untimely discovery dispute and several subsequent news articles. Defendant’s counsel made comments at the hearing related to (1) comments Plaintiff made during her bankruptcy proceedings; (2) Plaintiff’s history of sexual trauma; and (3) Plaintiff’s conduct after the alleged incident with Defendant. Hearing After making the request to file a motion to compel, Defendant’s counsel purportedly spoke with the press regarding these allegations, and several unflattering news articles were published about Plaintiff. {Ashley Collman & Natalie Musumeci, Cuba Gooding Jr. ‘s Lawyers Say Witnesses Heard Alleged Rape Victim Bragging About Having Sex With Him That Night, Insider (Feb 28, 2023, 4:56 PM); Tracy Wright & Marta Dhanis, Cuba Gooding Jr. Rape Lawsuit Trial Set For June, Fox News (Feb. 27, 2023, 5:16 PM).} Even taking Plaintiff’s entire characterization of the events as true {Defendant vehemently disputes Plaintiffs characterization of these events}, the factors do not tip in Plaintiff’s favor.

Under this District’s precedent, “public humiliation and embarrassment … are not sufficient grounds for allowing a plaintiff in a civil suit to proceed anonymously.” This discovery excursion, while unseemly, resulted in nothing more than unflattering online coverage of Plaintiff. Such a harm is not sufficient to warrant Plaintiff’s pseudonymity at trial and is instead the type of “unfortunate consequence” that “[m]any who make accusations against public figures are forced to endure.”

Finally, even if the Court credits the threats Plaintiff presented, her motion still fails because she did not provide the Court with documentation of any specific psychological injury she suffered resulting from the conduct of Defendant and his attorneys. “[A]bsent more direct evidence linking disclosure of her name to a specific physical or mental injury,” a plaintiff may not rely on an alleged, generalized psychological hann to proceed under a pseudonym at trial….

Plaintiff shall file an amended complaint containing her name no later 12:00 PM on Monday, June 5, 2023.

The post Woman Suing Cuba Gooding, Jr. Over Alleged Rape Can't Proceed as "Jane Doe" at Trial appeared first on Reason.com.

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Nineteen Rikers Island inmates died last year, marking a high the New York jail complex hasn’t seen in more than 20 years. Each death has received significant media attention. The embattled prison complex is under the review of federal monitors and under court order to reform to better keep its prisoners—many of whom are being detained pretrial and have not yet been convicted—safe.

This week, as Rikers remains under intense public scrutiny, media outlets reported an abrupt change in policy there. New York City’s Department of Correction will no longer inform the press when an inmate dies. This comes after two inmates, Rubu Zhao and Joshua Valles, died in May. The department didn’t publicly report either death.

Zhao died after reportedly falling or jumping over a railing on the top floor of a psychiatric facility at Rikers. According to an account from jail staff, it’s not clear whether he jumped or fell. The New York Times reported that jail staff told medical staff who arrived on the scene that Zhao had fallen but didn’t tell them it was from a significant height, and so they treated him for a possible seizure.

Valles, who was also being held in a psychiatric unit, had been complaining of headaches and vomiting and was taken to a hospital on May 19. On the way to the hospital, he had a seizure and later went into cardiac arrest. He died on May 27 at the hospital. Subsequently, the city’s Department of Correction has attempted to claim that Valles’ death wasn’t “in custody” because he was compassionately released on May 24 after he was sent to the hospital and while he was on life support. An autopsy of Valles reportedly showed that he had a fractured skull when he died, raising important questions about what may have caused his headaches and vomiting.

Rikers officials’ decision to stop informing the media about such deaths is troubling for a jail system under federal court orders to improve its operations. Kayla Simpson, an attorney with the Prisoners’ Rights Project at The Legal Aid Society, told The City, “I think it’s part of a series of attempts to isolate the jails from scrutiny to control the narrative.”

This new policy of silence may not just be limited to the press. On May 26, Steve Martin, the head of the federal monitoring team keeping tabs on Rikers, submitted a special report to the U.S. District Court for the Southern District of New York highlighting five recent incidents that “have raised serious concerns about the City’s and Department’s ability to accurately and timely report serious and/or life-altering injuries, to safely manage the individuals in its custody, commitment to transparency and to engage, collaborate with, and provide the Monitoring Team with timely and accurate information.”

Although the inmates in the five incidents are left anonymous, two of them are clearly Zhao’s and Valles’ cases. In Zhao’s case, jail staff did not report what happened to the monitoring team for 33 hours. In fact, Martin says he found out about Zhao’s death first from a media report. Martin says that when he finally received information from the Department of Correction, one of the commissioners told him that they’re under no requirement to report in-custody deaths to the monitoring team at all, which Martin says is simply not true.

Martin says his team didn’t find out about Valles’ situation until he was already hospitalized and near death when the team received “an external allegation that this individual was in the hospital and on life support.” When they contacted the Department of Correction, they were informed that Valles had a heart attack and that there was “no official wrongdoing” in the case. The report observed, “It is unclear how the Department was able to reach the conclusion that there was ‘no Departmental wrongdoing’ given the limited information available about the underlying incident.”

All five incidents described in the report took place over a span of just six days, and Martin worries in this report about what else might be going on that the department is not sharing with them: “Reports for these serious, disturbing, and life-altering incidents were either not generated at all, were completed after a significant delay, were completed only after the issue was raised by external inquiries, and/or omitted crucial information about injuries sustained.”

The report even accuses New York Department of Correction Commissioner Louis Molina of trying to convince him not to file it, warning that it would cause “great harm…at a time where we are making great strides.”

That seems to be how Molina has decided to approach this scandal as it spools out. In a statement following the report, Molina insists that Rikers is in a better state than it was under Mayor Bill de Blasio.

“Over the last 18 months, we have dramatically reduced violence, eliminated rampant absenteeism, improved critical aspects of our training, infused outside correctional expertise into our ranks, significantly improved court production, and made Rikers Island safer for every person in our custody and every single officer,” he said. “Simply put, the Department of Correction is in a much better place today than it was during the last administration. We have brought this organization back from the brink of collapse and we will not be deterred in continuing our good work.”

The irony here is that when it comes to in-custody deaths, at least, Molina is not wrong. There have been three reported deaths at Rikers in 2023 thus far. The jail system had seen twice as many in-custody deaths at this point last year. Rikers is on pace for a significant reversal if this trend keeps up.

But if conditions at Rikers are genuinely improving, then why on earth would officials be circling the wagon and trying to keep information about conditions there not just from the press but from the federal team they are legally obligated to respond to under a court consent decree? Why would anybody outside of the department actually believe them?

The post Under Scrutiny for New Deaths, Rikers Officials Shut Down Communication appeared first on Reason.com.

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There’s been a good deal of comment about the City University of New York law school student graduation speaker (Fatima Mousa Mohammed) who devoted a good deal of her speech to harshly condemning Israel and “Zionism,” as well as capitalism, the New York government, and America more generally. (I include the transcript of the speech and a link to the video at the end of this post.)

Beyond just the criticism, the CUNY Board of Trustees and Chancellor put out a statement saying,

Free speech is precious, but often messy, and is vital to the foundation of higher education.

Hate speech, however, should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.

The remarks by a student-selected speaker at the CUNY Law School graduation, unfortunately, fall into the category of hate speech as they were a public expression of hate toward people and communities based on their religion, race or political affiliation.

The Board of Trustees of the City University of New York condemns such hate speech.

This speech is particularly unacceptable at a ceremony celebrating the achievements of a wide diversity of graduates, and hurtful to the entire CUNY community, which was founded on the principle of equal access and opportunity. CUNY’s commitment to protecting and supporting our students has not wavered throughout our 175-year existence and we cannot and will not condone hateful rhetoric on our campuses.

A few thoughts:

[1.] It seems to me that graduation speeches should be (to use an overused term) as inclusive as possible, to mark an important and happy occasion in a way that the great bulk of the students and their family members in the audience can embrace.

Naturally, they will convey the speaker’s personal views, and those views may have some connection to current ideological controversies. But generally speaking, it’s best if those connections are relatively muted, and are framed in positive ways rather than negative ones. If, for instance (to give a hypothetical from my side of the aisle) a speaker wants to praise economic liberty, he probably should do that rather than rail against the evil regulators or condemn the supposed depravity of his political adversaries.

Now perhaps the speaker here knew her audience, and indeed 95% of the audience enthusiastically supports the view that America is “an empire with a ravenous appetite for destruction and violence”; that boycotting Israel and Israelis is a wonderful thing; that everything must be viewed through a “critical-imperialism-settler-colonialism lens”; that both Israel and the State of New York are murderous; that the NYPD is “fascist”; that everyone must fight against, among other things, “capitalism” and “Zionism”; and that the “oppressors” are not just wrong but “depraved.” She was, after all, selected to speak, apparently by the 2023 class, though I’m not sure how that selection process worked, and how many people deliberately chose her hoping that she’d give a fiery ideological diatribe.

But my guess is that, even at CUNY Law, the message was likely to be profoundly alienating to many in the audience—a message to sour rather than to enhance graduation day—even if it’s enthusiastically accepted by many others. [UPDATE: For a similar argument about a similar controversy in 2019, see Prof. Steve Lubet’s post on Why It Is Wrong to Harangue a Captive Audience at Graduation.]

[2.] This having been said, the CUNY Trustees don’t limit their condemnation of the speech to graduation ceremonies. Their statement says more generally that the speech was “hate speech,” which “should not be confused with free speech and has no place on our campuses or in our city, our state or our nation.”

That seems to convey the message that such speech (or perhaps just the anti-Israel part of the speech) is not just “hate speech”—a notoriously vague term—but is actually not “free speech.” The implication is that those who say such things at CUNY, even outside a graduation ceremony, may be punished, on the theory that their speech “should not be confused with free speech.”

That can’t be right, I think. Even if it’s legal and feasible to require public university graduation speakers to be relatively mild in their rhetoric (and I’m not sure whether it is), certainly such speech is fully protected by the First Amendment when said in many contexts at CUNY: a talk sponsored by a student group, leaflets distributed outside an event, a conversation among students, and more.

[3.] One way of thinking about this, for both sides of the debate, is to ask how we’d react if a hypothetical graduation speaker at, say, the University of Florida law school spent a good chunk of talk on the following. These are basically passages from the CUNY speaker’s speech, with Zionism and Israel and anti-Israel rhetoric replaced with Palestinian nationalism or Palestinians and the like, and CUNY’s actions against Israel replaced with hypothetical actions against the Palestinian territories:

In this moment of celebrating who we are, I want to celebrate Florida Law as one of the few, if not the only, law schools to make a public statement defending the right of its students to organize and speak out against [Palestinian nationalism]….

This is the law school that passed and endorsed [a boycott of people and businesses from the Palestinian territories] on a student and faculty level…. As [the Gaza government] continues to indiscriminately [engage in violent attacks on Israel], murdering the old the young, … as it encourages [Palestinian terrorists] to target [Israeli] homes and businesses, … our silence is no longer acceptable….

We are the student body and faculty that fought back when investor-focused admin attempted to [interfere with the boycott of Palestinians], saying loud and clear that [Israel] can no longer be the exception to our pursuit of justice, that our morality will not be purchased by investors….

Let us remember that [Israel], just this week, has been bombed with the world watching…. That there are [Israeli] political prisoners like [members of a group that has been accused of targeting Palestinians for violence] in US prisons …. That yesterday marked one year since the murder of [a US citizen by Palestinian military forces] ….

May we rejoice in the corners of our [Florida] apartments and dining tables. May it be the fuel for the fight against [Palestinian nationalism].

Regardless of our views about who’s right and who’s wrong in the Israeli-Palestinian conflict, I’m inclined to say that we should have the same reaction as I describe above. This material isn’t something that a graduation speaker should be saying to an audience that likely includes many people with different views on such subjects. It may be well-suited to a talk to a pro-Israel group, or to a debate on who’s right and who’s wrong in the Middle East, but not to a graduation. At the same time, such statements are by themselves indeed exercise of free speech, even if we may think they’re not suitable to this particular occasion. [UPDATE: Just to be clear, I note above the question whether it’s “legal and feasible to require public university graduation speakers to be relatively mild in their rhetoric”; but my point here is that the contents of the statements itself is free speech, and isn’t somehow stripped of constitutional protection under some “hate speech” theory.]

As to whether such speech is “hate speech,” that’s very hard to tell, given the vagueness of the definition of “hate speech.” Our legal system avoids this question by not treating “hate speech” as a legally significant term; I avoid it by not using the label in my analyses more broadly. But if others disagree and use the term “hate speech,” they’ll need to figure out which of the various definitions should be used, and then figure out how to apply it to speech such as the CUNY Law graduation speech or my hypothetical above. (For instance, is speech that harshly condemns Palestinian nationalism intended to condemn a particular nationality, or to incite hostility to that nationality? Or is it just meant to promote hatred to a particular ideological belief system that is closely tied to a nationality—and would that be enough to keep the speech from being “hate speech”?)

[4.] Finally, here’s a transcript of the speech that my research assistant prepared, so you can review everything in context for yourselves; I also link to the video below:

Hello everyone. Thank you, Dean Setty for that introduction. I want to start by greeting you all with the greeting I know best: Assalamu’alaikum warahmatullahi wabarakatuh, may peace and blessings be upon you all. My name is Fatima Mousa Mohammed, and I come to you all from the rich soil of Yemen raised by the humble streets of Queens.

It is my honor, and I’m humbled to be standing before you all as a selected class speaker— daytime speaker—of the class of 2023.

To all our loved ones, our parents, grandparents, siblings, partners and friends, our comrades, aunts and uncles, and all the little kids in the crowd. Those who made it, and those who couldn’t. We wouldn’t be here without you. Thank you for your unwavering love. My mom’s crying so [inaudible] …. Thank you for your unwavering love and support. This celebration is yours. This is a moment for those who paved the way for us to be here. Those who wiped out our tears, those who are waiting ahead, and to those we now must open the doors. And now to the graduating class of 2023. Before I begin I want to tell you all that my grandparents are in Yemen right now and they assured me that there are fireworks lighting up the city of Aden, in celebration of all of us. So just know that oceans away, there’s a whole city on the other end of the earth, it feels like, celebrating you all.

To the class of 2023, the moment we have all been waiting for is finally here. The class that began this journey during a season of grief, a season where ambulance trucks were the only noise in town and our neighborhoods became sort of ghost towns. Where we watched our immigrant parents keep the city on its feet as they saw bodies packed into refrigerated morgue trucks. The class that saw nothing but black zoom square boxes for the first two years—there’s a lot I can say about the loss and the pain we’ve all endured over the last few years, but I am reminded of Frantz Fanon’s words. “Things get bad for all of us almost continually, and what we do under the constant stress reveals who and what we are.”

So I’m here to celebrate who and what we are, who you are. Like many of you, I chose CUNY School of Law for its articulated mission to the law in the service of human needs. One of very few legal institutions created to recognize that the law is a manifestation of white supremacy that continues to oppress and suppress people in this nation and around the world. We joined this institution … [applause] we joined this institution to be equipped with the necessary legal skills to protect our communities, to protect the organizers fighting endlessly, day in and out, with no accolades, no cameras, no votes, no PhD grants, working to lift the facade of legal neutrality and confront the systems of oppression that wreak violence on them. Systems of oppression created to feed an empire with a ravenous appetite for destruction and violence. Institutions created to intimidate, bully, and censor and stifle the voices of those who resist. In this moment [applause] …

In this moment of celebrating who we are, I want to celebrate CUNY Law as one of the few, if not the only, law school to make a public statement defending the right of its students to organize and speak out against Israeli settler colonialism.

That this … [applause] that this is the law school that passed and endorsed BDS on a student and faculty level. Recognizing that absent a critical-imperialism-settler-colonialism lens, our work and the school’s mission statement is void of value. That as Israel continues to indiscriminately rain bullets and bombs on worshippers, murdering the old the young, attacking even funerals and graveyards, as it encourages lynch mobs to target Palestinian homes and businesses, as it imprisons its children, as it continues its project of settler colonialism, expelling Palestinians from their homes, carrying the ongoing Nakba that our silent—that our silence is no longer acceptable.

We are … We are the student body and faculty that fought back when investor-focused admin attempted to cross the BDS picket line, saying loud and clear that Palestine can no longer be the exception to our pursuit of justice, that our morality will not be purchased by investors. We are the class … We are the class that fought for incarcerated clients and zealously filed for their clemency applications with nearly zero institutional support. We are the class that fought for clients to get asylum, that went to court to reunite families torn apart by ACS and the family surveillance. We are the class that organized against using LEXIS, a legal research company contracted with ICE.

And we did all of this in spite of the racism, in spite of the selective activism, the self-serving interests of CUNY Central, an institution that continues to fail us, that continues to train and cooperate with the fascist NYPD, the military, that continues to train IDF soldiers to carry out that same violence globally. A larger institution committed to its donors, not to its students. I am here to remind us all that our existence on its own today in this room is revolutionary. That as we embark on our legal careers, we must practice a discipline of truth and courage and hold ourselves true to the mission statement we came to this school for. So today, I celebrate the courage and bravery that got us here, and I celebrate every moment of resilience that sets us apart as the number one leading public interest school in this nation.

I see … I see before my eyes, brilliant future public defenders. I see brilliant immigration attorneys, housing attorneys, business attorneys, civil rights attorneys and movement lawyers. I see professors and librarians. I see before me future practitioners who will work on contracts to end partnerships with ICE and not intellectual property contracts to secure designs for the newest drone technology murdering children. I see future lawyers who will defend tenants in court and not those that dispossess our communities from their homes. I see future attorneys who will protect the communities terrorized by the surveillance state and not protect the agents of oppression that carry out that terror. Future lawyers who will fight to keep families together and not tear them apart. I see future lawyers who will work to make this world a better place ,one person, one movement at a time. I see a class to be rejoiced, a class to be celebrated, a class to be remembered today and in the years ahead. And as we celebrate who we are today, let us actively fight against the collective amnesia and cognitive dissonance that limits our understanding of the world to what is only directly before our eyes.

Let us remember … Let us remember that Gaza, just this week, has been bombed with the world watching. That daily, brown and black men are being murdered by the state at Rikers. That there are Palestinian political prisoners like HLF in US prisons, that there are refugees at the southern border still locked up. That yesterday marked one year since the murder of US journalist Shireen Abu Akleh, and that the murder of black men like Jordan Neely by a white man on the on the MTA is dignified by politicians like Eric Adams and Senator Chuck Schumer.

We leave our classes and we leave the school to a world that so desperately needs us to stand alongside those who have given up, for the sake of liberation, far more than we could imagine. So may the joy and excitement that fills the auditorium here, may the rage that fills this auditorium, dance in the hallways of our elementary schools, in our home villages of Sheikh Jarrah, Gaza, and Yemen, Haiti, Puerto Rico, and the Philippines. May we rejoice in the corners of our New York City bedroom apartments and dining tables. May it be the fuel for the fight against capitalism, racism, imperialism, and Zionism around the world.

No one person will save the world. No single movement will liberate the masses. Those who brunt the ferocity of the violence, those who carry the revolution. The people, the masses, those who brunt the ferocity of the violence, those who need our protection, they will carry this revolution. The revolution that lives so loudly despite not being televised. No longer are we going to capitulate to oppressors. No longer are we going to put our hope in their depraved consciousness. And, as the great Malcolm X said, “We declare our right on this earth, to be a man, to be a human being, to be respected as a human being, to be given the rights of a human being in this society, on this earth in this day, which we intend to into existence by any means necessary.”

So one client at a time, one case at a time, one hearing at a time, we will show up for communities. We will show up for ourselves. And we will protect the fight that brings us all closer to the fall of all oppressive institution. A reality that is only myopic and unrealistic to the oppressors, but is the inevitable future for the oppressed, for oppressed people everywhere. For greater empires of destruction have fallen before and so will these. So to the class of 2023, the fight begins now.

https://youtu.be/2RpvTrB9P_M?t=4581

The post Graduation Speeches, "Hate Speech," and the CUNY Law Controversy appeared first on Reason.com.

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