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First (and sixth) amendment fetishism


Lara Bazelon makes a bunch of terrible arguments in this piece on Harvard’s decision not to renew the appointments of law professor Ronald Sullivan and his wife, lecturer Stephanie Robinson, as faculty deans of Winthrop House, an undergraduate residence:

Harvard’s decision came on the heels of loud and persistent student protests demanding that Sullivan be removed as dean. His unforgiveable sin? Joining the defense team of Harvey Weinstein, who faces charges of rape and sexual assault in state court in Manhattan.  . . .

The decision to jettison Sullivan and Robinson—in response to what Dean of Harvard College Rakesh Khurana called an “untenable” situation—is craven, foolish, and sends the wrong message to academics who also practice law: If your clients aren’t likeable enough, your students may get upset and your school will throw you—and the Sixth Amendment—under the bus.

Yeah no. The Sixth Amendment guarantees — in theory: good luck turning that theory into practice if you’re not rich — defendants who face serious criminal charges competent legal representation. It does not guarantee the right to have a Harvard Law School professor represent you in court.

One of graffiti messages asked Sullivan, “Whose side are you on?” The answer should be obvious: the side of justice. Justice requires due process. In addition to being a law professor, Sullivan is a criminal defense lawyer, which means his job is to represent the accused—no matter how despised, no matter how heinous the accusation.

Come on. Bazelon writes as if Sullivan has some sort of moral obligation to represent Weinstein. In fact Sullivan chose to make room in his schedule — which one would think was already fairly packed, given that he’s being paid a pretty penny to be a full-time (ahem) law professor, as well as to do the administrative work required of a faculty dean of an undergraduate residence — to bill out his professional services at some no doubt eye-popping rate, to represent a superrich high status defendant, who was already employing a phalanx of high-powered legal help. To Kill a Mockingbird this isn’t.

Things don’t get better when Bazelon turns to the First Amendment:

Another right, no less important, is the First Amendment right to speak and associate freely. It is this right, above all, that universities exist to defend.

Not at Harvard, apparently. In an apparent concession to the student demand, Khurana said that “concerns about the climate in the Winthrop House” called for him to make the “very hard decision” to replace Sullivan and Robinson.

This is nonsense on multiple levels. First, not to get all law-talky, but the First Amendment doesn’t actually constrain administrative decisions taken by Harvard, which is a private institution rather than an arm of the government.

But beyond this, the notion that universities are under some institutional prime directive to defend “free speech” is both wrong-headed and harmful. Universities are supposed to be pursing the acquisition and transmission of knowledge, which are pursuits that require the vigorous and continual suppression of false ideas. Higher education would be impossible if colleges and universities did not engage in pervasive intellectual content discrimination, of a sort that would certainly qualify as illegal censorship if it were carried out by the government in a different context.

Here’s an example, pulled from today’s headlines (or rather what would be today’s headlines if the media gave as much attention to actual neo-Nazis as they do to Democratic congresswomen who phrase their condemnations of anti-Semitism with less than perfect clarity, or Harvard undergraduates who don’t want to be administrated by Harvey Weinstein’s lawyer.)

For the past five years, Joyce Griffis and Congregation Chaim B’Derech have held a Holocaust March for Remembrance in Russellville, Arkansas. It’s always been solemn and peaceful.

This year’s march was supposed to be like all the others; attendees would march down Main Street, listen to speeches and offer prayers to commemorate and remember the 6 million Jews murdered by the Nazis during World War II.

Except white supremacists showed up holding Nazi flags, marching down an otherwise deserted sidewalk and signs that read, “The Holocaust didn’t happen but it should have,” while screaming references to Holocaust victims as “your imaginary 6 million.”

Now these white supremacists certainly have a right “to speak and associate freely.” But do they have the “right” to have universities present their viewpoint that the Holocaust didn’t happen? This turns out not to be a purely theoretical question in the context of this particular protest, since it was inspired by a dispute over that very question:

Arkansas Tech University in December announced that it had received a little more than $190,000 from the estate of a late professor to create a scholarship fund. The fund — the Michael Arthur Link and May Reid Kewen History Scholarship — would honor the professor and his late mother. Link had taught history for 51 years before he died in 2016. . .

But Jewish organizations are objecting to an honor for Link, who they say was a Holocaust denier and promoted anti-Semitic views . . .

One person who studied under Link has come forward to support the university for honoring the professor. He is Billy Roper, who runs the Shield Wall Network, which is described by the Anti-Defamation League as “a small white supremacist group based in Mountain View, Arkansas, that promotes racist and anti-Semitic rhetoric.”

Now hang on, just because someone is asking politically incorrect questions that trigger the libs, that hardly means they should be labeled “racist and anti-Semitic.”

Roper, on his website, wrote, “The Jewish ADL, long under investigation for committing acts of espionage against the United States on behalf of Israel, along with typically shrill Jewess professor Sarah Stein, have failed in their Jewy attempts to intimidate Shield Wall Network Coordinator Billy Roper’s alma mater into removing a beloved history professor’s name from a scholarship he endowed. The greasy hook-nosed kikes even demanded that the university remove a non-offensive comment Mr. Roper placed on a page in memory of his former professor and confidant. To their credit, the university where Roper earned his master’s degree after taking multiple classes under Link has stood firm and so far refused the Jews’ demands. The full name of the ADL indicates that they are the ‘brotherhood of the circumcised.'”

OK then.

Michael Link was a history professor for 51 years, who at some point became a Holocaust-denying crank:

“The evidence against Dr. Link includes anti-Semitic passages in his written work, testimony from former students and colleagues, and a well-documented 2005 incident in which Dr. Link presented anti-Semitic, neo-Nazi published texts in a graduate seminar as though they were legitimate historical works. This evidence has been reviewed by the Anti-Defamation League, leaders of the Jewish Federation of Arkansas and international and national scholars in the field of Holocaust studies. All have found it credible and convincing, and all agree that Dr. Link presented hate-filled, nonfactual, anti-Semitic misinformation to his students as though it offered a historically valid point of view,” the letter says.

“Over the course of Dr. Link’s tenure, the university allowed him to expose thousands of students to these odious, dangerous mistruths under the guise of three deeply disturbing and absolutely intolerable tactics. First, Dr. Link presented misinformation as history. Second, he presented the anti-Semitic nature of this misinformation as though it were truthful, correct and acceptable. Third, he presented the question of whether the Holocaust occurred — an irrefutable historical fact — as though it were an appropriate, valid point of debate. The administration of Arkansas Tech has had months to remedy its honoring of Dr. Link at the request of ADL and concerned faculty members, but it has done nothing. The position of the administration clearly breaches the university mission and belies the standing of the university as a public institution devoted to higher education.”

Now if the United States government had prohibited Michael Link from publishing or distributing literature that “taught the controversy” [sic] over whether or not the Holocaust really happened, that would violate the First Amendment. But for a university — even a public university like Arkansas Tech, which, unlike Harvard, is actually subject to the First Amendment — to refuse to allow Holocaust denialism to be taught in its classrooms doesn’t violate the Constitution. Universities are supposed to “censor” false speech — by for example refusing to hire Holocaust deniers, or refusing to allow them to teach Holocaust denial if they should start “teaching the controversy” after they get hired — and indeed could not function as universities if they didn’t.

I have no idea whether it was a good decision on Harvard’s part to decline to renew Sullivan’s administrative appointment (factors in addition to his representation of Weinstein seem to have played a part in the decision), but I do know that neither the First nor the Sixth Amendment had any relevance to that decision, even by metaphorical implication.

The Sixth Amendment right to counsel has nothing to do with the question of whether it’s a good idea for a particular law professor to trade on the cachet of his academic institution while charging a zillionaire a small fortune to help represent him in court.

And universities don’t exist to maximize free speech: they exist to extend knowledge. That mission often conflicts with maximizing free speech, and to pretend it doesn’t just gives ammunition to people who hate universities precisely because they often refuse to “teach the controversy” over not just whether the Holocaust really happened, but over similarly controversial questions, such as whether human activity is warming the planet, or whether the Earth is more than 6,000 years old, or whether America is God’s extra-special favorite country, etc.

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