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Glenn Reynolds Reiterates Belief in the Summary Execution of Protestors

[ 159 ] September 23, 2016 |

strangelove

Glenn Reynolds, a law professor, called for the summary execution of protestors. In a non-apology apology, he clarified that he still believed there were numerous circumstances in which people should kill protestors. In a follow-up post, he approvingly posts an email trying to define Reynolds’s tweet as an answer to the “trolley problem”, because apparently anyone in a car when protestors use the common tactic of blocking traffic is in “reasonable fear for his life.” Right. There is no possible defense for this, and Reynolds has an extensive history of this kind of thing.

And, yet, I agree with Henry that Reynolds should not be disciplined. Reynolds’s words, reprehensible as they are, were not plausibly an incitement in the sense that would exclude them from First Amendment protection. Reynolds should be protected by academic freedom, even if his own commitment to the concept is less than robust.

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  • Duvall

    Everyone would be okay with Reynolds getting canned by USA Today though, right?

    • (((Hogan)))

      If it’s good enough for Ann Coulter, it’s good enough for Glenn.

    • Murc

      Absolutely.

      I say that as someone who is a big believer in the fact that if we’re going to demand people have jobs, then what they do outside of those jobs are not the business of their employers and they should be protected from being retaliated against for them. You want to spend your weekends at Klan meetings and have a giant swastika tattooed on your back? That makes you a terrible human being, but when you show up at your job in Accounts Receivable on Monday morning it ain’t the business of your employer.

      But Reynolds job at USA Today was specifically predicated on his opinions and political views. That’s part of the work requirement. If USA Today finds that Reynolds no longer holds opinions it wishes to give him money to express, that can’t reasonably be held to be a form of retaliation.

      It would be different if he were, say, a copyeditor at USA Today, or mopping their floors, or something. But he isn’t.

      • JL

        I agree with all of this comment.

        • rea

          Yeah–there are times in which the employer’s free speech rights* trump the employees’–USA Today shouldn’t have to have opinion columnists whose opinions they reject.

          *Free speech rights in the moral sense–USA Today firing someone isn’t state action.

          • USA Today shouldn’t have to have opinion columnists whose opinions they reject.

            That can’t be quite the case as a general matter, can it, given that—for example—the New York Times has various pairs of weekly op-ed writers with incompatible opinions? Relatedly, how are you proposing to make a principled distinction between “reject” and “disagree with”?

            • (((Hogan)))

              That can’t be quite the case as a general matter, can it, given that—for example—the New York Times has various pairs of weekly op-ed writers with incompatible opinions?

              The NYT does that, yes. That doesn’t create or imply a general obligation for all newspapers to do that.

              Relatedly, how are you proposing to make a principled distinction between “reject” and “disagree with”?

              Might have something to do with the difference between “not exactly my opinion” and “outside the range of opinions I consider reasonable/responsible/acceptable.”

        • ThrottleJockey

          That makes you a terrible human being, but when you show up at your job in Accounts Receivable on Monday morning it ain’t the business of your employer.

          I disagree with you…at least based on the surface.

          Ummm, if I find that my colleague is a card carrying member of the KKK with a giant Swastika on his back, then HR better launch a full fledged investigation to see just what discriminatory acts this fool has committed.

          If he has managed to avoid being discriminatory on the job, fine, but most people aren’t that good at compartmentalization. That goes double for Klansmen.

          • Captain_Subtext

            On the contrary, I think conservatives, in particular, is amazingly good at compartmentalization. If you read “The Authoritarians” by Dr. Altemeyer he demonstrates this quite effectively.

            As I work in and among engineers for the most part; they are amazingly good at doing their jobs and then denying the science behind it. It’s a fundamental feature of how they work.

          • Then you agree with Murc: the extra mural stuff is not, itself, grounds for firing.

            Now maybe it merits extra scrutiny, but that’s different.

            For example, if a prof had, as a kooky academic position, that blacks or women were inferior, you’d damn sure want their grading to be anonymised and probably spot checked to avoid bias.

      • That’s just silly. what if your employe is a child molester or murderer? What if s/he likes to start fires in his free time? If an employe openly advocates murder (as Mr. Reynolds did) ANY employer, including a college, should be able to kick his ass (fire him). “Freedom of speech” doesn’t mean you can scream “Fire!” in a crowded theater.

        • Isn’t the original “fire” in a crowded theater one of the pieces of Labor History that Loomis posts occasionally?

          • Patick Spens

            “Fire in a crowded theatre” as a rhetorical device originates from Supreme Court decision saying that arresting and imprisoning anti-war protestors is in fact a good and cool thing to do.

            • The original event that inspired Justice Holmes’s choice of phrase was indeed a labor dispute described by Erik here:

              On December 24, 1913, striking Italian copper workers in Calumet, Michigan were holding their Christmas party in the town’s crowded Italian Hall building. Someone shouted “fire.” Could have been company thugs, but we will never know. In the ensuing panic, people rushed the exit and 73 died, including 59 children.

        • Murc

          That’s just silly. what if your employe is a child molester or murderer? What if s/he likes to start fires in his free time?

          Those are all crimes. You don’t have to continue to employee someone who is serving jail time, no.

          If an employe openly advocates murder (as Mr. Reynolds did) ANY employer, including a college, should be able to kick his ass (fire him).

          Reynolds speech doesn’t meet the legal standard for being actionable, I don’t think, which means his employer shouldn’t be able to touch him.

        • UserGoogol

          Murderers gotta work too. If it doesn’t effect the quality of the work, it’s none of the employer’s business. The issue can be a bit blurry, since employing a murderer can be a bit of a bad PR move, but the idea that merely being an especially bad person is itself a valid reason for firing just seems petty.

        • Dagmar

          Here in my slice of ‘Murica, the GOP has implemented the legal structure of employment at will. Any employee can be terminated at any time, with or without cause.

      • ThrottleJockey

        Murc & JL–Did you feel similarly when those racist OU frat boys sang the lynching song at a frat outing, in the privacy of their own party bus?

        • Murc

          Students aren’t employees.

          • ThrottleJockey

            So you’re saying a university should have greater free speech restrictions than the workplace? I’m not sure how you’re distinguishing the two.

            • JL

              Employers have more coercive power over employees than universities have over non-employee students (since the vast majority of people need employment in order to be able to obtain food, housing, etc). One of my general guidelines for this kind of thing is that the more coercive power an entity has, the more wary I am of it taking action against people for speech. Which is why I’m a big fan of First Amendment free speech protections (well, one reason) – the state has the most coercive power of any entity.

            • I wouldn’t say that the free speech restrictions should necessarily be greater, but that the university has more responsibility when it comes to protecting its students from harassment. The university maintains its own housing and social activities and organizations for its students, and its much harder to disentangle the students’ personal lives from their “on campus” lives.

              Also, the fraternity was a university-recognized organization. If the local widget factory’s company softball team also got together for cross-burnings, it’s rather different than if individual employees do it on their own.

              • ThrottleJockey

                Also, the fraternity was a university-recognized organization.

                I actually opposed the expulsions based on Free Speech principles. But that comment is the best I’ve seen for expelling them.

                Without some evidence of discrimination I oppose firing (or expelling) people for having repugnant views which they express to like-minded friends in private. Should a discrimination investigation have been launched? Yes. I believe in due process though because black people have been denied it so often and until discrimination evidence surfaced and was presented to a formal body where they could defend themselves prior to expulsion.

      • los

        job at USA Today was specifically predicated on his opinions and political views
        Ignore ideology. The most common deficiency amongst “professional” pundits is a headstrong amalgam of dullness and unoriginality.

        I don’t have much opinion of Maureen Dowd, but past LGM threads suggest that some LGMers would like Dowd “fired” for incompetence.

        There are tens of incompetent conservative pundits who should be put to (consummated) pasture.
        Victor Hansen
        Thomas Sowell
        George Will
        Rubin Navarette
        Debra Saunders.
        Many had been humorously bad, but the jokes got old after the reader read enough of the same “genres” of idiocy.

        • Just_Dropping_By

          I was going to ask howDebra Saunders qualified as a “conservative pundit,” but then I discovered I was confusing her with Saundra Smokes (who apparently died four years ago?!?).

          • burritoboy

            Debra Saunders, by the way, repeatedly also called for executions of protestors (by firing squad – she was quite explicit in the methodology she wanted used) against Iraq War II. She was – and remains today – an opinions columnist for the San Francisco Chronicle.

    • More than ok, it’s pretty bad that they aren’t doing so. 1 month? For an apology that everything else he writes anywhere is clearly insincere?

      Oh damn, what he wrote in his apology is crap.

      Can him.

      • The Dark God of Time

        What about his rights as a writer? Aren’t you afraid he’ll get canned and that will adversely affect some academic who also writes for USA Today in the future in some undefinable way?.

        It’s amusing to see you turn into Judge Lynch when something takes place outside the sacred precincts of higher education that you disagree with.

        • Funny!

        • sonamib

          I hear an axe being ground.

        • Scott Lemieux

          Are you saying that writers have the right to write anything while keeping their jobs? If I started pitching conservative commentary The Guardian and The New Republic still has to publish me? This makes no sense.

          • The Dark God of Time

            I was being sarcastic. Sorry if it took a Mach 7 vector before flying over your head.

            • Quaino

              You’re aware that nothing in the context of the comment signals sarcasm and that nobody can hear the tone in your head, right?

              • The Dark God of Time

                Thank you for caring. Do you have a newsletter I could subscribe to?

              • N__B

                nobody can hear the tone in your head,

                That’s why I had speakers installed subcutaneously. Also, it allows me to use “Hey babe, wanna see my woofer?” as a pick-up line.

                • “Where I come from, we call that a tweeter!”

              • Bill Murray

                seriously? It seemed pretty obvious where I am reading

              • Ronan

                Eh, I did(edit: read it as sarcasm) , and I’m pretty sure Bijan did (strange thing is, Id mostly agree with dark God if it wasn’t sarcasm )

                • You agree that it’s weird that I think academic freedom protects his university job but not his part time opinion-publishing gig and that the grossness of his tweet justifies losing the latter? Ooookay!

                  I think academic freedom and the first amendment (since public university) protect a lot of reprehensible speech. That doesn’t mean I think that no-consequences should follow from reprehensible speech…nor should it.

                • Ronan

                  No, what I’m saying is I thought you read dark.God as being sarcastic. (This is what above argument is about)

                • Ronan

                  Sorry, I see what you’re saying. You’re responding to

                  “strange thing is, Id mostly agree with dark God if it wasn’t sarcasm”

                  I don’t think it’s “weird.” Id err on the side of leaving him keep his opinion piece job, but this really doesn’t rise beyond a normative preference so there’s little point debating it

        • (((Hogan)))

          Yo Dilan–this is what a stalker looks like.

          • The Dark God of Time

            Thank you for your interest. The voices in my head agree with by a vote of 10-1, Judas Iscariot abstaining.

          • I appreciate your impulse, Hogan, but I don’t think The Dark God of Time is a stalker. They dislike me and a lot of what I write and are a bit mean about it. But otherwise, it’s just comments.

            • The Dark God of Time

              Damn, and I was going to be featured in Stalker Monthly for the December issue.

              Their motto: “Don’t bother to subscribe. We already know where you live.”

              • Maybe Dilan will take you on?

                • The Dark God of Time

                  He’s in the November issue!

    • Bas-O-Matic

      I wouldn’t be sad about it. I don’t think it would be right.

      • Why not? As Murc points out, it’s actually pertinent. Plus, it’s a second, prestige gig.

        • Murc

          And as I said, if Reynolds were doing something other than writing opinion pieces, I would say “no, he shouldn’t be fired, that would be retaliatory.”

          But they’re literally paying him for his opinion. That’s the nature of their relationship. If they don’t like his opinion, they should be able to show him the door.

          It’s like if I were hired to drive rivets on an assembly line, and a year later decided that I wasn’t going to drive rivets, I was going to start lighting shit on fire. My employer doesn’t have an obligation to keep me on in that situation, I don’t think; I’ve changed the nature of our relationship unilaterally.

          • Right, there’s a range of positions for which your extra mural activities are materially pertinent: spokesperson or minister comes to mind. Also, there are “prestige” positions for which it’s reasonable to treat as very much at will: Commencement speaker, CEO.

            But these are relatively few.

            In Reynolds’s case, I also think his total lack of remorse is relevant.

          • Gregor Sansa

            No, it would be as if you got arrested a year later for being drunk and riveting. Your riveting behavior off the job has bearing on how good you are at riveting on the job so they can fire you.

            • Murc

              No, that would be bullshit.

              If I own my own rivet gun and on the weekend got lit up and decided to really just… bedazzle the fuck out of an old car frame up on blocks in my back yard with rivets galore, and the cops came and arrested me for unsafe operation of heavy equipment, that’s not my employers concern unless I’m missing work.

              Their only concern should be how I’m performing on the job. Period. If I walk in every morning stone cold sober and ready to really rivet the fuck out of things, flawless safety record, that is their only concern.

              • so-in-so

                FWIW, a truck driver who has is license suspended or revoked for actions in his personal vehicle will still be out of a job although he didn’t commit an infraction with a commercial vehicle. The same is true of other licensed professionals if they also do the licensed activity as a “hobby” on the side (pilots come to mind).

                • Murc

                  FWIW, a truck driver who has is license suspended or revoked for actions in his personal vehicle will still be out of a job although he didn’t commit an infraction with a commercial vehicle.

                  Yeah, because he’d no longer have the credential required to perform his job.

                  Completely different situation.

                  If the hypothetical riveter has whatever certifications he needs to operate a rivet gun revoked (I know nothing about riveting beyond the fact that it is awesome) then yes, that should be grounds for termination.

              • q-tip

                I know Stanley Fish is a touchy subject around here, but his “There’s No Such Thing As Free Speech and It’s a Good Thing Too ” essay always comes to mind when people get down to arguing edge cases like this.
                At some point, you have to pull the trigger and say “No, that shit is beyond the pale.” Maybe you don’t pull the trigger in THIS case – but you don’t deny that there’s a point at which you WOULD.
                http://www.english.upenn.edu/~cavitch/pdf-library/Fish_FreeSpeech.pdf

                (I’m actually really sympathetic to Murc’s position as I understand it; I just don’t think it holds up as a matter of principle.)

              • leftwingfox

                I just wanted to thank you for the delightful hypothetical. :)

            • I have to say, I‘ve never found his writing (the little I’ve read) to be riveting.

              • efgoldman

                I‘ve never found his writing (the little I’ve read) to be riveting.

                Took you long enough.

          • Patick Spens

            They’re paying him for his opinion columns no? If you’re going to draw a bright line between work and not work about what gets you fired, shouldn’t they only fire him if his opinion columns start* sucking?

            *Yes, yes, “start” very funny.

  • What’s the “academic” doing here before “freedom”? Academic freedom does not create a privileged class of speakers. It creates a privileged space of learning, teaching and scholarship. Reynold’s tweet had nothing do with these. In the context, he has exactly the same speech rights as the protestors. WalMart can’t fire an employee for joining in the protest in their own time, Reynold’s university can’t fire him for being an asshole about it.

    • Warren Terra

      I’m very much not an expert, but I’m not sure you’re right: I’m not sure employers are unable to punish their workers for activities outside of the workplace and unrelated to their work responsibilities. Certain protected classes aside (religion, sometimes gender and sexual identity), I think the employer can fire you if your outside behavior is not in keeping with their identity. Some classes of worker have gained special protections from this: civil service protections, and tenure protections – but there is (or only was?) a reason they wanted these protections.

      • Follow the link to CT and you’ll find a bunch of posts eventually by Corey Robin stating that it is quite common. I think he underestimates the existence of a norm against firing people for political activity in perhaps a majority of places, but he makes very good points.

      • Aaron Morrow

        Unless your state happens to have a law on the books requiring a just cause for firing, then it only applies to those with a good contract, like those enacted by unions.

        (Most states don’t, and there is no federal law requiring a just cause.)

      • DrDick

        They in fact do so on a regular basis. You can even get canned for your Facebook posts.

        • Downpuppy

          Especially if you’re on injured reserve.

          Making Reynolds play catcher for the Mariners might be an appropriate punishment.

      • For that matter, most people probably have little recourse even if they are a member of a protected class and that facts related to their being fired. It would be as difficult to prove as that they were fired because a supervisor didn’t like their bumper stickers. (To me, that shows that firings for political activity goes against a norm, but YMMV.) I’ve seen some weird things, luckily at a small minority of places I’ve worked (not including me personally), but even so I couldn’t swear protected classes weren’t involved, and in fact the best evidence I have of that is the way certain people have reacted when I described parts of the incident I didn’t even connect to it (and even then who knows). I haven’t seen anybody fired for political beliefs, though, unless that included “organizing on company time after several years of warnings”.

        • Richard Gadsden

          This is why you can’t have protected classes with meaningful enforcement with at-will firing – because it’s too easy to come up with some bullshit legal excuse unless you have for-cause only.

          Here in the UK, you can be fired for-cause (gross misconduct, nonperformance of duties, or inability to do work to an adequate standard), you can be made redundant (job deleted without replacement, but the selection criteria must be fair and there is statutory compensation of one week’s pay per year’s service up to 26 weeks) but any other basis is unfair dismissal, and you’re entitled to compensation (typically a few grand; limit is about £80,000, plus up to 25% if the employer doesn’t have a proper disciplinary process or didn’t follow it; no limit if you can prove sex or race discrimination).

          Yes, you could just fire someone and write a cheque for £120,000 and be sure they’d go away – but that’s enough money to provide a disincentive.

      • advocatethis

        I had a co-worker who was fired for non-fatally stabbing his wife (off the clock, in their home). This was not an academic position, but he was a public employee with a “property right” to his position. The nexus that the employer was able to persuade the arbitrator to buy was that the newspaper article about the stabbing identified him by his profession and it was a small town where this would have been known anyway. I never bought that as valid, but my opinion didn’t count.

    • Academic freedom does not create a privileged class of speakers.

      Yes it does. As enacted by tenure, it definitely does. With tenure, you cannot be fired for a variety of reasons. Without tenure, you can.

      Now, the University of Tennessee has extra constraints wrt all its employees for first amendment reasons.

      ETA: Note that this is a *problem* with academic freedom in the US! It’s extraordinarily restricted in scope and was further shrunk by adjunctification.

      • This is actually one thing I prefer about UK academia: We have robust(ish…and being eroded) worker protections for everyone. So we don’t have the tenure angst thing and more people are covered by reasonable protections. Academic freedom helps define the causes for which you can be censured or fired and provides a *bit* more protection against redundancy for financial reasons (though that’s being tested).

    • JL

      WalMart can’t fire an employee for joining in the protest in their own time

      Yes they can, because Walmart workers don’t have the same protections, or the same cultural norms in their industry, as tenured professors. Firing is at-will unless it’s for protected-class reasons or some kind of special contract (e.g. negotiated by a union) or legal protection gives you more rights than the average worker. But IMO, it’s bad that they can, and all workers should have more protections. As Warren Terra says, there’s a reason that the occupations that have special protections from at-will firing wanted those protections.

      • HenryW

        Section 7 of the National Labor Relations Act protects the rights of Wal-Mart workers to protest on their own time–and on working time too, to a lesser extent. There were some bad cases from the D.C. Circuit (thanks to Judge Ginsburg–Douglas, not Ruth) that imposed some hazy requirement of “loyalty” on workers, similar to what serfs would have owed their lord, but the Obama Board has gotten that Circuit to distinguish the Hormel case into oblivion in the recently decided DIRECTV v. NLRB decision.

        Now that right is not universal (it needs to be about labor issues to be covered by the NLRA or race/sex/national origin/religion/age/disability to be covered by Title VII, the ADEA or the ADA, to list the most relevant statutes) and it is subject to some quirky exceptions (purely individual protests may not be protected under the NLRA, although that’s an oversimplification of the rule), but it can make a difference in lots of cases. The NLRB has made extending Section 7 rights a priority–as should all of us who favor workers’ rights, since protecting workers’ right to protest is both important in and of itself and a first step to rebuilding the culture of organizing that was so critical in the 1930s.

        Does this mean that a police department cannot fire a cop for posting white supremacist messages on his Facebook page? Probably not. But that’s a separate discussion for another thread.

        • Warren Terra

          Perhaps you can explain: does that give them the right to protest generally, or only to protest against WalMart? Is there a middle ground, where they can join allied labor actions, but can’t protest in favor of saving the Pacific Tree Octopus habitat?

          • HenryW

            Section 7 gives Walmart workers the right to join other workers’ protests against another employer, whether related to Walmart (say, a picket line calling for a boycott of sweatshop-produced goods sold at Walmart) or not (speaking at a rally of Verizon employees, for example). The rally in favor of the Pacific Tree Octopus probably not. But political activities that have some labor angle (walking door to door for Clinton or Sanders with literature that highlights their pro-worker stances is probably protected, especially if organized by a labor group; campaigning for passage of a right to work bill would be too).

            It gets a little trickier when the subject of the rally gets more diffuse: the May Day rallies in favor of immigrants’ rights, for example, should be protected activity because immigration reform would have meant legalization for millions of workers. But wearing a “Make America Great Again” cap at work or away from work might not be protected under the NLRA. Some states, including California, have statutes barring discrimination on the basis of political activities as well.

    • Dagmar

      But if you teach constitutional law, and advocate for outrageous positions that, if stated by a student in an exam answer, would result in that student flunking out of law school, do you have the academic qualifications to be a constitutional law scholar. Nope. Oh yeah, tenure.

  • Warren Terra

    The Trolley Problem is explicitly not about self-defense.

    • Well, I’m sure that the Ole Perfesser is also willing to mow down the rude protestors to protect his fellow refined motorists! In fact, he may have a particularly good reason to do just that.

    • Well. The Trolley Problem is intended to induce certain reasoning processes, and to lead to the development of moral intuitions into principles. One of these principles may turn out–say, as a strong commitment to de ontological reasoning–not to permit diverting the trolley even in self-defense. The Violinist problem, proposed by Philippa Foot. in which a person is medically tied while unconscious to a brilliant musician who gives great joy to many people and whose death would cause enormous grief, and must decide whether to extricate herself from the hospital and kill him, or sacrifice her own life (though perhaps not at the price of actual immediate death) is closer to being directly about self-defense, but draws out the extent to which many people seem to have different intuitions about killing in the two cases.

      But TLDR is: Absolutely.

      • Oh–isn’t this motherhood?

        • (((Hogan)))

          Yes, I think the occasion for the Violinist problem was the abortion debate.

          • Yes, its a gedanken experiment that I am very familiar with.

            • (((Hogan)))

              Ach. I should have known.

        • If motherhood means being kidnapped by the baby’s admirers and impregnated by force . . .

          But most teachers (admittedly I’m more familiar with high school English teachers using these things than philosophy professors) insist how she got that way isn’t important. . . .

  • Brett

    I’ll third that he shouldn’t be disciplined at his university. Although that does raise an interesting issue with the growing “no platforming” ideology.

  • sean_p

    He’s incited people to murder protesters by running them down with their cars, but he shouldn’t face consequences because of “academic freedom”? Seriously?

    Academic freedom ought to protect you from firing based on things you do in the world of academia, not from criminal offenses you commit outside the classroom or research lab.

    • What he tweeted was loathsome without a doubt, but

      1) It’s not clear that it rises to criminality. I would be surprised if it were prosecutable (see the prior thread).

      2) Academic freedom very much protects extra mural activities, cf the AAUP statement:

      Tenure is a means to certain ends; specifically: (1) freedom of teaching and research and of extramural activities, and (2) a sufficient degree of economic security to make the profession attractive to men and women of ability. Freedom and economic security, hence, tenure, are indispensable to the success of an institution in fulfilling its obligations to its students and to society.

      and it should.

      3) U of T is bound by the first amendment, being a government activity.

      Of course, 2 and 3 don’t protect against sanction for criminal activity, but then we have 1.

      • HenryW

        This came up in the case of John Yoo, who is still a tenured professor at Berkeley. As loathsome as he is personally and as shitty as his legal skills are (read the torture memo if you want to see an example of someone who tries to defend the indefensible but fails completely), I would still defend his tenure rights under the Morrison standards that also protect hundreds of thousands of other California public employees. Let’s remember that public school teachers’ right to a hearing before they are fired is still under attack, even after the Vergara decision, before we call for either Yoo’s or Reynolds’ dismissal for their conduct outside the classroom that may or may not speak to their performance as teachers. And let’s also remember that those of us on the left are even more vulnerable to attacks of this sort (remember Steven Salaita?) before we start making it easier to fire someone for his or conduct away from work.

        • Yep.

        • Murc

          My understanding is that actually producing bad scholarship is grounds for revocation of tenure, and that Yoo’s legal scholarship is very bad indeed, but I freely admit I may be mistaken in that regard.

          • It really depends on what you mean by “bad”. In traditional US tenure, then no. You have pretty wide ranging freedom to purse whatever you like, content wise. It can be kooky. It can published in junk journals. But it’s pretty protected.

            Academic malpractice (e.g., falsification, plagariasm, etc) are not at all protected.

            Obviously promotion can be conditioned on certain kinds of success e.g., grants or publications (of certain quality) or citations.

            This is being eroded (e.g., tenure review, in the UK we’re seeing thing like “research expectations”). But that’s bad. It’s chilling and leads to a lot of gaming and other crap.

    • The Dark God of Time

      A law professor who advocates illegal activity should have no more job protection than would be granted to a biologist who believed in Lysenkoism, a physicist who believed in the luminiferous ether, or a medical professor who advocated bleeding as a treatment for infections. Academic freedom is suppose to be a shield, not a tank to protect those who believe in discredited or outdated beliefs in their professional field.

      • (((Hogan)))

        A law professor who advocates illegal activity

        You might want to narrow that down a tad.

      • yet_another_lawyer

        You might be shocked to find that tenured academic freedom, as a general proposition at least, does in fact protect supposedly “discredited” beliefs. Most of the filtering is done on the front end, in that cranks ideally shouldn’t get tenure in the first place. And canning law professors who “advocate illegal activity” is hilariously overbroad– under that standard, a law professor who said the protesters are doing a great job and more people should join them would be subject to firing, in that they’re technically breaking numerous laws. So is someone who says, “it’s fine to go five over the speed limit.”

        • The Dark God of Time

          Advocating vehicular homicide is a bit different than than advocating civil disobedience or the other examples you cite.

          Which may explain why you are yet another lawyer.

          • yet_another_lawyer

            You’re the one who said, without qualification, that a law professor who advocates illegal activity should have no academic freedom protection. If you had any qualifiers in mind, then you didn’t state them. I’m a lawyer, not a psychic.

            • The Dark God of Time

              it should have been obvious that I was referring to illegal activity of this level in the context of the discussion, but thanks for trying to score points over definitions than the content of what I said, or pretending not to understand the concept of context.

              But, what else could one expect from yet another lawyer?

              • yet_another_lawyer

                Okay, so be specific– in your unstated qualifiers, which we were supposed to define from the ether, what exactly is the “level” of illegal activity you have in mind, keeping in mind that the tweet itself doesn’t rise to the level of criminal incitement? For whatever level you decide, which jurisdiction’s laws control (in this case, Tennessee? North Carolina? Where Twitter is based out of)? You’re proposing an unworkable standard and, when called on it, invoke the word “level” to do all the work.

      • Murc

        So if a law professor called on people to commit acts of civil disobedience to protest the constant murder of people of color by the police, you think they shouldn’t have job protections?

        Because acts of civil disobedience are in fact illegal activities.

        • The Dark God of Time

          Civil disobedience is a recognized tactic that calls on people to break laws in the service of a higher goal, like civil right or equality.

          That you and others lump disruption, trespass, and refusal to obey lawful commands as the same as advocating vehicular manslaughter or murder reinforces my own experiences with lawyers who thought they were alwAys the smartest person in the room.

          • Murc

            I’m not a lawyer, and I also don’t appreciate you telling lies about what I’ve said.

            You were the one who issued a blanket statement; law professors shouldn’t receive job protection for advocating illegal activity. You have now moved those goalposts to saying they should only receive job protection for advocating certain kinds of illegal activity, and insulted multiple people who pointed out that your initial position might have bad consequences.

            This doesn’t make your case a strong one.

            • JL

              Since I said the same thing you did, but further down (somehow missed your comment before I posted my own), I’m waiting for this person to tell me as well that I’m a lawyer who don’t know the difference between civil disobedience and advocating trying to kill protesters. It’ll be good for a laugh.

          • (((Hogan)))

            That you and others lump disruption, trespass, and refusal to obey lawful commands as the same as advocating vehicular manslaughter or murder reinforces my own experiences with lawyers who thought they were alwAys the smartest person in the room.

            Actually you’re the one referencing “illegal activity,” which lumps together all of those things. Others are pointing out the stupidity of using that as an unqualified criterion.

            I’m not saying you’re wrong to lash out, but let’s be clear on the actual reason.

            • The Dark God of Time

              Okay, I should’ve added of this magnitude or of this seriousness.

              Thank you for your concern.

      • altofront

        A law professor who advocates illegal activity should have no more job protection than would be granted to a biologist who believed in Lysenkoism, a physicist who believed in the luminiferous ether, or a medical professor who advocated bleeding as a treatment for infections.

        How about an evolutionary psychologist who apparently understands neither evolution nor genetics? As currently understood, outdated or erroneous beliefs are protected by academic freedom, and I think that’s the way it should be.

        Also, “advocat[ing] illegal activity” is a pretty broad category of speech, especially considering that many acts of civil disobedience are illegal. If I say someone’s head should be on a stake, does that constitute advocacy? (Asking for a friend.)

        • The Dark God of Time

          Can his teachings be falsified? If not, he’d get a pass, unlike the other examples I mention, where that would be an easy task to accomplish

          “Run them over” isn’t a exaggerated statement like “Put his head on a stake”

          That you can’t tell the difference between the two statements is part of the problem here.

          • altofront

            “Run them over” isn’t a exaggerated statement like “Put his head on a stake”

            That you can’t tell the difference between the two statements is part of the problem here.

            Help me out, then. Explain how “exaggeration” makes the second statement clearly permissible while the first should be sanctioned, as a matter of university policy. What if Reynolds had said, “Run them over, and then back up and do it again”? Would that pass muster?

          • yet_another_lawyer

            Can his teachings be falsified? If not, he’d get a pass, unlike the other examples I mention, where that would be an easy task to accomplish

            You are like an unworkable standards factory. Okay, I’ll bite: Under this bold new regime where academic freedom doesn’t count for teachings that can be “falsified,” who decides whether a teaching can be falsified, under what burden of evidence, under what rules of evidence, and with who making the decision? Is this another case where you have unstated “levels” in mind, or can someone be fired if, e.g., they think George Washington died in January 1800 whereas historians are pretty sure it was December 1799? To the extent you have a level in mind, what level is severe enough to warrant loss of academic freedom?

            • You are like an unworkable standards factory.

              What’s the ISO-9000 standard for unworkable standards factories?

              • Patick Spens

                Whatever I mean to say at the time, obviously.

              • yet_another_lawyer

                Nobody knows, except apparently the Dark God of Time.

                • Scott Lemieux

                  It’s sad that the totally brilliant, complex points that TDGOT means but are neither expressed in or implied by the words s/he actually types keep going over your head.

                • yet_another_lawyer

                  NOTHING GOES OVER MY HEAD. I WOULD CATCH IT.

            • The Dark God of Time

              You don’t seem to understand the concept of falsifiability.

              That’s why you remain yet another lawye.

              • yet_another_lawyer

                Okay, so fine– let’s assume for the sake of argument that you have to explain this to someone who lacks the psychic powers to understand what you mean. How exactly would this work? Including, specifically, the burden of proof, rules of evidence and just who would be making the determination about whether a belief has been falsified. Be specific.

      • JL

        A law professor who advocates illegal activity should have no more job protection than would be granted to a biologist who believed in Lysenkoism, a physicist who believed in the luminiferous ether, or a medical professor who advocated bleeding as a treatment for infections.

        Breaking the law isn’t a discredited or outdated belief in the field of law.

        Also, it would follow from your statement that a law professor who advocated civil disobedience should not have job protections.

        • It’s not hard to find less sympathetic examples.

          Famously, Ted Honderich argued that Palistinians have a moral right to terrorism. I believe he argues that they can violate jus in bello. But if he didn’t in particular, you can imagine someone doing so.

    • Warren Terra

      His tweet was a bare handful of intemperate words, that were unacceptable but did not threaten specified individuals. That would be an awfully thin basis to face severe consequences, even outside of academic freedom questions.

      His subsequent digging the hole deeper by attempting to justify the murder of protesters at some length is of course worse.

    • Scott Lemieux

      criminal offenses

      1)What criminal offenses? 2)Firing someone for criminal offenses she committed in the classroom would not violate academic freedom. Tenure doesn’t mean you can’t fire people for cause.

      • yet_another_lawyer

        I’d be careful about asking for clarification from this one. You might get lumped us with all us filthy lawyers who are interested in things like “logic” and “what the parent comment actually said.” I can’t imagine a worse fate.

  • King Goat

    Conservatives are actually rallying to the guy, and not a duplicitous (for many of them) ‘what he said is bad but deserves protection,’ they’re actually arguing ‘run them down’ was a perfectly fine thing to advocate. Check out how many make that argument here at Insidehighered.com

    https://www.insidehighered.com/news/2016/09/23/u-tennessee-investigating-professor-and-popular-conservative-blogger-tweeting#disqus_thread

    • Warren Terra

      Of course, the whole problem is his attempts to retroactively justify his dumbass outburst, and his peanut gallery joining in on the effort is hardly going to make matters better.

    • JL

      After I (along with several other people) got arrested, there were, between Twitter (and probably Facebook) and the comments sections of local papers, literally hundreds of people saying that we should have been run over. I’ve been at protests where drivers tried to hit protesters with their cars. There are enormous numbers of people who believe that running over protesters (or anyone else who slows their cars down – I’ve had a slur-screaming driver threaten to run me over for being in the left turn lane on my bike) would be perfectly justified. Reynolds, unfortunately, isn’t the first and won’t be the last.

      • Have I mentioned recently how much I admire the work you do? Because I admire it a lot.

        • JL

          I think you have, and thank you. :)

          • In case you didn’t see a traceback, I’ve been recommending your blog as key election time reading.

            • JL

              Aww, thank you! :)

              I should post more (and did for the first several weeks of the blog’s existence), but gah, I have a lot of balls in the air at any given time.

      • gmack

        When I and other grad students were on strike to get our union recognized, we had something like his happen. As part of our picket, we would occupy crosswalks (only when the sign said “walk”) at the entrances of the university. One driver decided he was pissed at having to wait until the light changed and drove over the curb and through a crowd of strikers on the sidewalk and grass next to the crosswalk. Happily, no one was injured. Also, the police officer who was monitoring our picket (and who was very good to work with) arrested the driver.

        Oh, and to reiterate Bijan’s point, I really admire your work too.

  • Joe_JP

    Good nuances about academic freedom and in comments the difference between his professor and USA Today jobs.

  • HenryW

    And while we’re on the subject of killing protestors, let’s remember what William Howard Taft said in a letter to his sister about reports that federal troops had shot and killed 30 Pullman strikers: “Everybody hopes that it is true.” He was a federal judge at the time.

    • LosGatosCA

      Lovely – President and Chief Justice perspective. You have to like that.

  • lexalexander

    Let us stipulate that there is nothing so bad that Glenn Reynolds cannot make it worse.

    That said, what he said, though despicable, didn’t meet the legal test for incitement; accordingly, he should not be punished unless there is some specific, pre-existing agreement between him and USA Today that his comment has somehow violated.

    Shamed, yes. Massively. But not punished.

    • Paul Campos

      I’m not a contract law expert, but I believe that in every contract between employers and at-will employees like Reynolds there is an implied “don’t be a fucking idiot who does damage to our business with your fucking idiocy” clause.

      • Scott Lemieux

        If Reynolds has language in his contract preventing him from being fired for that tweet and the subsequent non-apology, I think he’d be pretty much the only freelance pundit in America with it.

  • Brownian
    • Wow!

      Even if there’s no actual connection, this will certainly up the dean’s pressure on Reynolds.

      • Brownian

        Right. I shouldn’t have been flippant in my first comment: I’ve no idea if there’s any actual connection.

        • JL

          There’s probably not. As I said above, tons of people think it’s justified to run over protesters who are in the road. Tons. “Someone should run them over” is right up there with “Get a job!” in the ranks of ridiculous shit that people say frequently about protesters (though obviously a lot nastier).

          • Brownian

            Yup. Very common. So I wonder if this will help or hurt Reynolds. Bijan has a point that this might increase pressure for the dean to do something, but I can see Reynolds using it to bolster his case, publicly: “I’m being punished for saying what everyone is thinking!”

          • Lost Left Coaster

            As an urban bicyclist, let me say that a non-negligible number of drivers out there think that violence is justified against anyone who inconveniences them when they are on the road. They don’t act on it often, but there are plenty of cases of bikes being hit deliberately. And all urban bicyclists know that they will be screamed at and honked at merely for existing. A certain number of people really do think that they own the road. This is part of the “run them over” attitude too.

            • I remember this as a trick question in my first driver’s ed class. The teacher asked us “If you are driving on the highway and a pedestrian crosses in front of you is it ok to hit him?” About half the room said “yes.” And then he shouted “NO: It is NEVER OK TO HIT THE PEDESTRIAN.”

            • JL

              Yep.

              In the biking case, far more common (IME) than anyone trying or verbally threatening to hit a cyclist, is the driver who veers too close, possibly while accelerating, forcing the cyclist closer and closer to the side of the road to avoid being hit. I’ve occasionally had to stop altogether in such situations to avoid scraping the curb, which would probably result in a crash.

            • I had someone in a car try to at least bump me when I crossed the road *behind a car ahead of them waiting to make a turn*.

              Drivers in the UK have an awful habit of accelerating into a stop that’s very unnerving. They also really want not to make pedestrians feel safe. I would go so far as to say that an awful lot of them are assholes.

              Cyclists can be pretty bad too (as I experienced, again, today). Barrelling toward me on the sidewalk (wrong side). And we have *dedicated separated cycle lanes*.

            • (((Malaclypse)))

              About a year ago, I was in a car being driven by my then-boss. A bicyclist is in front of us.

              Boss: I know you won’t agree with me, but bikes don’t belong on roads.
              Me: Well, the law doesn’t agree with you either.
              Boss: I shouldn’t need to slow down.
              Me: You slow down for trucks. Is it just that they are bigger?
              Boss: You all don’t belong on roads. I don’t really care what the law says.
              Me: [I can’t wait to find a better job]

  • semiotix

    Tenured humanities professor at a public university here, respectfully disagreeing.

    It’s important to remember that tenure speech protections fall waaaaaaaay short, by design, of First Amendment protections. They are not and never have been intended as license to speak the unspeakable, and it does no injury to academic freedoms to recognize that there are ideas that cannot be advanced without defeating the purpose of education in the first place (for some if not all members of a university community).

    I would be summarily fired (for cause, and rightfully so) if I said any of the following things, in any context:

    * Blacks aren’t as smart as whites. (Violates about a hundred of our university’s policy statements.)
    * Men may not speak in this class on women’s history. (Arguably a Title IX violation; absolutely violates our stated sexual discrimination policy.)
    * There are no such things as learning disabilities, and I’ll treat anyone who wants “accommodation” as either a liar or a moron unable to come to terms with their own stupidity. (Violates the ADA and various state and DoEd laws or regulations.)
    * Most women who say they were raped are lying. But wait, before you lynch me, I have statistics of some sort, so it’s my sacrosanct professional opinion! (Creates an untenably hostile learning environment, and casts doubt on my analytical skills.)
    * “FIRE! FIRE! OH MY GOD STAMPEDE FOR THE EXIT, THERE’S A FIRE!” (Unless there’s a fire.)
    * Today in geometry, we discuss the ratio of a circle’s circumference to its diameter in a flat Euclidian plane. It is known as “pi,” and it is exactly 3. (Demonstrates incompetence.)

    Notice that this doesn’t prevent me from screaming my political opinions in or outside of class, adopting or failing to adopt any given ideology/lifestyle/manner of dress/religion/preferred statistics package/etc. It doesn’t keep me from tilting at whatever windmills my discipline may have erected. It simply keeps me from using speech or actions implied by speech to frustrate other people’s rights to conduct their research or further their education.

    Reynolds teaches law. He’s advancing in all apparent seriousness a theory of justifiable homicide that exists nowhere in TN law–and don’t take my word for it; TN lawyers are all over the internets about this today. He’s at least arguably–if not prosecutably–committing a crime in his own right. So far he’s failing–refusing–to offer any real explanation or context. Does all this rise to the level of a dismissal? Maybe or maybe not, but UT is absolutely entitled to ask the question.

    Academic freedom (which ought to extend well beyond the ranks of the tenured, but that’s a different story) needs to be frightfully strong. But it can’t be absolute, and if these aren’t grounds for at least considering the question, then you’re basically adopting an absolutist position. And I don’t think that can work in practice.

    • rea

      He is not committing a crime–the threat to run someone over is insufficiently imminent. Maybe if he were sitting in the passenger seat of a car speeding toward a line of protesters, and said that to the driver . . .

    • Thank you for this. Very illuminating. I would also like to add that I am sick of the outrage at the outrage–for fuck’s sake its not worse for the U of T to be urged to take a hard look at Reynolds public behavior than Reynold’s actual public behavior. I feel like sometimes the discussions of academic freedom are a bit like those where people shriek that its worse to call someone a racist than for them to actually do something racist. Reynolds incited people to violence–why do we let the police arrest people for doing the same thing when they are protesting but draw back and offer protection to Reynolds when he does it? Is it somehow not seen as serious because its just on twitter? How is what Reynolds any different, other than brevity, than the radio incitement in Rwanda?

      • JL

        I don’t think there’s been a lack of outrage here at Reynolds’ comments. There was a whole thread of it yesterday. I’m not sure there’s anyone here who thinks that urging the U of T to look at Reynolds’ behavior is worse than what Reynolds said.

        why do we let the police arrest people for doing the same thing when they are protesting

        We shouldn’t.

    • efgoldman

      Academic freedom (which ought to extend well beyond the ranks of the tenured, but that’s a different story) needs to be frightfully strong. But it can’t be absolute

      Wasn’t a tenured professor fired within recent memory for aggressively being a holocaust denier? Or am I conflating different events in my head?

      Also, IA definitely NAL, but what if someone filed a complaint with the CA bar about Yoo the asshole’s torture memos, and some other disgusting things he’s written, and the bar association censured him or took some other action. Could the university take action because he teaches in the law school?

      • Patick Spens

        If it’s the case I’m thinking of, he was “actually” fired for not properly submitting paperwork about his extra-mural for profit activities. That was just a serious Capone going down for tax evasion situation.

    • Tenured humanities professor at a public university here, respectfully disagreeing.

      It’s important to remember that tenure speech protections fall waaaaaaaay short, by design, of First Amendment protections.

      First, you do know that if you are at public university (like Reynolds) you *also* have first amendment protections? Because the university is part of the state?

      And in a sense, tenure protections go *beyond* first amendment protections. For a lot of private jobs, you can be fired for political activities.

      They are not and never have been intended as license to speak the unspeakable, and it does no injury to academic freedoms to recognize that there are ideas that cannot be advanced without defeating the purpose of education in the first place (for some if not all members of a university community).

      This is a bit of a novel interpretation. It doesn’t seem to comport with the AAUP understanding.

      But let’s consider your examples. Let me stipulate that, as you designed, these are all awful and people who say or advocate these things are pretty damn bad.

      (By the way, if you were *summarily* fired, without a hearing, that would be…surprising! Tenure usually guarantees due process.)

      I would be summarily fired (for cause, and rightfully so) if I said any of the following things, in any context:

      * Blacks aren’t as smart as whites. (Violates about a hundred of our university’s policy statements.)

      Wait, you’re saying that tenure doesn’t protect someone publishing a Bell Curve? Or being a member of the Republican party (or the Nazi party)?

      * Men may not speak in this class on women’s history. (Arguably a Title IX violation; absolutely violates our stated sexual discrimination policy.)

      This involves a forbidden action. It’s not the speaking per se but the policy? Or do you think that *advocating* “men being silent in women’s history” classes is sanctionable? A lot of separatist theorists are in trouble. (The Mary Daly case, wherein she wanted segregated classes, is interesting).

      * There are no such things as learning disabilities, and I’ll treat anyone who wants “accommodation” as either a liar or a moron unable to come to terms with their own stupidity. (Violates the ADA and various state and DoEd laws or regulations.)

      This is two things. The first (asserting that there is no such things as learning disabilities) is protected in a lot of contexts (e.g., a paper or extramurally). Refusing to provide reasonable accommodation is illegal (certainly in the UK).

      * Most women who say they were raped are lying. But wait, before you lynch me, I have statistics of some sort, so it’s my sacrosanct professional opinion! (Creates an untenably hostile learning environment, and casts doubt on my analytical skills.)

      Extramurally this is permitted (it’s not *in* a learning environment) and in a paper it would be embarrassing, but permitted.

      * “FIRE! FIRE! OH MY GOD STAMPEDE FOR THE EXIT, THERE’S A FIRE!” (Unless there’s a fire.)

      Well, this doesn’t even have first amendment protection.

      * Today in geometry, we discuss the ratio of a circle’s circumference to its diameter in a flat Euclidian plane. It is known as “pi,” and it is exactly 3. (Demonstrates incompetence.)

      In most classes, this would get you in trouble (though probably not summarily fired).

      Notice that this doesn’t prevent me from screaming my political opinions in or outside of class, adopting or failing to adopt any given ideology/lifestyle/manner of dress/religion/preferred statistics package/etc. It doesn’t keep me from tilting at whatever windmills my discipline may have erected. It simply keeps me from using speech or actions implied by speech to frustrate other people’s rights to conduct their research or further their education.

      So…it’s not “in any context”. I’m confused.

      I don’t think anyone has said that the Dean shouldn’t look into it. But I don’t see that it will be a justifiable tenure revocation case (i.e., if they did on the stuff we’ve seen thus far, assuming no indictment, the AAUP would object). The fact that it’s extramural makes it pretty strongly protected. Then there’s his first amendment rights.

  • libarbarian

    Characterising this as anything close to a substantive “incitement to violence” is just fucking willful stupidity.

  • synykyl

    I don’t think Reynolds should be fired, but I’d advise the miserable bastard to be very very careful when crossing the street.

  • Speaking of the First Amendment and instructors in public schools:

    FAYETTEVILLE, N.C. — A North Carolina school superintendent is recommending a 10-day suspension without pay for a high school teacher who stepped on the American flag in class to make a point about the First Amendment.

    The Fayetteville Observer reports (http://bit.ly/2ctISlz ) that Lee Francis, a history teacher at Massey Hill Classical High, received a letter Friday informing him of the recommended punishment.

    Cumberland County Superintendent Frank Till says stepping on the U.S. flag is “inappropriate in our schools” and violates policy.

    Francis has 15 days to request a school board hearing. He says he’s disappointed the district is “kowtowing” to society.

    Francis says his point Monday was to show students the meaning of a 1989 U.S. Supreme Court ruling that found flag desecration is protected speech.