The Volokh Conspiracy

I’m delighted to say that Ronald Collins and, briefly, Floyd Abrams will be guest-blogging this week here at the Conspiracy. Prof. Collins, the Harold S. Shefelman Scholar at the University of Washington Law School, is the author of many articles and books, including On Dissent: Its Meaning in America (2013, with David Skover) and Nuanced Absolutism: Floyd Abrams & the First Amendment (2013). He will be blogging this week about the second of these books.

Floyd Abrams is a partner at Cahill Gordon & Reindel, and one of the leading First Amendment lawyers of our time; he argued in, among other cases, Citizens United v. FEC, McConnell v. FEC, Harper & Row, Inc. v. Nation Enterprises, Metromedia, Inc. v. City of San Diego, CBS v. FCC, Smith v. Daily Mail Publishing Co., Herbert v. Lando, Landmark Communications, Inc. v. Virginia, and Nebraska Press Ass’n v. Stuart. For 15 years, he was the William J. Brennan, Jr. Visiting Professor of First Amendment Law at the Columbia Graduate School of Journalism, and he has also been Visiting Lecturer at Yale Law School and Columbia Law School. He has written many articles, as well as the books Speaking Freely: Trials of the First Amendment, published by Viking Press (2005) and Friend of the Court: On the Front Lines with the First Amendment (2013). He will be blogging one day this week about the second of these books.

I much look forward to both of the cobloggers’ posts!

TribLive (Pittsurgh) reports:

Carnegie Mellon University police on Friday filed charges of indecent exposure against two art students accused of public nudity during a campus parade sponsored by the College of Fine Arts.

Police identified the female student accused of parodying the pope as she paraded nude from the waist down as Katherine B. O’Connor, 19 ..., a sophomore art major ....

University President Jared Cohon, who has publicly apologized for the April 18 papal parody, announced the charges in an email on Friday. He said the university will not discipline the students.

Police charged Robb S. Godshaw, 22, of Wilmette, Ill., accusing him of dressing as an astronaut and disrobing atop a float during the parade. Photographs on Godshaw’s Facebook page show him disrobing and riding the float naked, police said in court documents....

The criminal charges capped a university review triggered by an inquiry from Bishop David Zubik of the Pittsburgh Catholic Diocese. Zubik asked the university to take a stand on the papal parody, which he found offensive....

“As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality,” Zubik said.

“The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial,” Cohon said.

“While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action.”

Some thoughts:

1. Public nudity is indeed illegal in Pennsylvania, and if the facts show that the defendants’ genitalia were indeed visible, that’s a crime. Nor do I think that there is a defense for public nudity — or public sex — when engaged in for artistic or political purposes, though I recognize that there are interesting questions about how constitutional doctrine has developed in this area (with publicly visible displays of moving pictures of nudity, for instance, being generally protected by the First Amendment, Erznoznik v. City of Jacksonville (1975), but live nudity being unprotected).

And I doubt that this is a case of selective prosecution, in which people whose expression is blasphemous are punished for violating a law that others routinely violate with impunity: My sense is that people who go around naked in public in Pittsburgh are going to be prosecuted regardless of their message. So I doubt there is a First Amendment problem here, though there might have been if this indeed involved a law that is otherwise unenforced.

2. The Bishop’s view of free speech is, however, quite constrained. “As I have said over these last few weeks, this is an opportunity for all of us to be reminded that freedom of speech and freedom of expression do not constitute a freedom to dismiss or disrespect the beauty of anyone’s race, the sacredness of anyone’s religious belief or the uniqueness of anyone’s nationality.” Religious beliefs are beliefs, and others may quite plausibly not have respect for what the beliefs say, or how they were arrived at; and of course they may doubt that those beliefs are “sacred.”

It is often counterproductive, juvenile, and ill-mannered to express disrespect for others’ religious beliefs in certain ways, but under First Amendment law — which I think is exactly right on this score — dismissing and disrespecting the sacredness of others’ religious beliefs is very much a part of one’s freedom of speech and religious freedom. (Nor should there be any exception from the First Amendment for speech that dismisses “the beauty” of races or “the uniqueness” of nationalities.)

3. The CMU President, Dr. Cohon, issued a statement, saying, in relevant part:

Let me begin by quoting the university’s freedom of expression policy ... [:]“Carnegie Mellon University values the freedoms of speech, thought, expression and assembly — in themselves and as part of our core educational and intellectual mission. The university must be a place where all ideas may be expressed freely and where no alternative is withheld from consideration. The only limits on these freedoms are those dictated by law and those necessary to protect the rights of other members of the university community and to ensure the normal functioning of the university.”

Our policy makes it clear that Carnegie Mellon is committed to the rights of its students to express controversial views, while recognizing some key restrictions on that expression — including those dictated by law.... The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial. While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action....

There are competing values at issue here: Carnegie Mellon aims to be a place where ideas can be expressed and debated openly, but also where people of all backgrounds, faiths, and beliefs feel welcomed and supported. Unavoidably, the expression of some views will offend some people; that is the price of this freedom. However, if in the expression of these views, people in our community come to feel that the campus is intolerant, then the other of our cherished values is challenged. In such a situation, the institution may find it necessary to reassure those offended of its commitment to tolerance and inclusion. In doing so, I do not believe that the institution is compromising freedom of expression. Similarly, it is reasonable to expect individuals to consider the impact on others in expressing their views and how they choose to express them. This is responsibility, not censorship, and something that our students, especially, should learn while they are members of our community.

It is our practice in controversial situations such as this one to provide opportunities for discussion, where all sides have a chance to express their views. This has already begun on the campus. Members of our community are asking themselves the difficult questions about what happened here, and embracing their responsibility to create a context in which events like these can continue to be held in a manner which is consistent with the full range of our values. These values include, certainly, freedom of expression, but also the cultivation of an inclusive, mutually respectful environment, and respect for the law....

On balance, this seems quite reasonable, if taken literally — as I think the University has — to mean that the response for speech that makes groups reasonably feel offended (but doesn’t violate the law) might include public statements of support for the targeted groups, but would not include suppression of the speech. And I also agree teaching students, without punishing the speech, “to consider the impact on others in expressing their views and how they choose to express them,” is a pretty reasonable goal on the university’s part, especially since the habit of considering such things will serve the students in good stead in their future lives.

Agence France Press reports:

A Saudi court jailed a Lebanese man for six years and sentenced him to 300 lashes after convicting him of encouraging a Saudi woman to convert to Christianity, Saudi dailies reported Sunday.

The same court sentenced a Saudi man convicted in the same case to two years in prison and 200 lashes for having helped the young woman flee the ultra-conservative, US-backed Sunni kingdom [without her family's permission, which is a crime], local daily Al-Watan said....

The woman, known only as “the girl of Khobar,” was granted refuge in Sweden where she lives under the protection of unspecified NGOs, according to local press reports....

Both men, who could also be prosecuted over other charges including corruption and forging official documents that allowed the woman to leave the country without her family’s agreement, will appeal.

The accused and the young woman were coworkers at an insurance company, so I suspect the woman was an adult. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

I’d like my First Amendment Amicus Brief Clinic students to read some excellent amicus briefs, to see what works, and to see the various kinds of briefs that work. I have some samples, but I’d love to see more, and in particular briefs that are not U.S. Supreme Court merits briefs. [UPDATE: I at first neglected to mention that it helps if the briefs were influential, whether shown by citations to them, the incorporation of their arguments, or otherwise.]

Anything else is helpful — amicus briefs supporting cert petitions (of course, it helps if the petition was granted), amicus briefs in U.S. Court of Appeals cases, amicus briefs supporting en banc review, amicus briefs in state appellate cases (whether supporting discretionary review or on regular appeal), amicus briefs in state and federal trial courts, amicus briefs before administrative agencies, and anything else I might have missed. Naturally, I’d especially like to hear feedback from judges, either in the comments or by email (to volokh at law.ucla.edu). And of course, amici briefs, amica briefs, and amicae briefs are good too ....

I’m pleased to say that three of the six items in The Post: Good Scholarship from the Internet, vol. 3 — a new journal from the Journal of Law people that reprints blog posts that its editorial board found especially worthy — come from the Conspiracy. Here is a list of all the posts; you can read a copy of the issue here:

The Secret “Kill List” and the President, The Volokh Conspiracy, May 29, 2012, by Kenneth Anderson

Are You Ready for Some . . . Research? Uncertain Diagnoses, Research Data Privacy, & Preference Heterogeneity, The Faculty Lounge, Feb. 3, 2013, Michelle N. Meyer

Debate on the Treaty Power, The Volokh Conspiracy, Jan. 13-Feb. 3, 2013, by Nick Rosenkranz, Eugene Kontorovich, Rick Pildes & Ilya Somin

The Decision to Uphold the Mandate as Tax Represents a Gestalt Shift in Constitutional Law, Legal Theory Blog, June 28, 2012, by Lawrence Solum

Asian-Americans, Affirmative Action, and Fisher v. Texas, The Volokh Conspiracy, May 31, 2012, by Ilya Somin

Law Schools Suffer Loss in Lawsuits, Balkinization, Sept. 19, 2012, by Brian Tamanaha

For journal co-editor Anna Ivey’s explanation of why each post was chosen, see here.

The decision is Righthaven, LLC v. Hoehn (9th Cir. May 9, 2013), and it holds that Righthaven didn’t properly secure the exclusive rights needed to sue various alleged copyright infringers. (In this particular case, Righthaven had sued two people who posted newspaper articles onto Web sites, though it had also sued others in the past.) Congratulations to Kurt Opsahl and Corynne McSherry of EFF, as well as Marc Randazza and J. Malcolm DeVoy, on their victory.

Note that the Ninth Circuit vacated the pro-defendant fair use ruling in Righthaven LLC v. Hoehn (D. Nev. 2011), reasoning that Righthaven’s lack of the exclusive rights needed to sue stripped the district court of jurisdiction to even decide the fair use question.

An Investor’s Business Daily column claims:

Like other states, Delaware originally enacted its unclaimed property laws as a consumer protection mechanism to reunite Delaware residents with dormant bank account balances, uncashed paychecks, and other unclaimed property.... But Delaware is now interpreting those laws against businesses to create a colossal revenue source for the state government.

Today, unclaimed property is Delaware’s third-largest source of revenue after income taxes and franchise fees. Last year alone, Delaware seized $319.5 million from liquidated property while returning only $18.9 million of unclaimed property to its rightful owners.

Delaware does this through an unfair, onerous and expensive audit system that “looks back” to 1981, and contrives unclaimed property if the company doesn’t have records for all those years. This process often costs companies millions of dollars, mires them in years of audits, and forces them to deal with third-party auditors who are motivated by contingent fees to invent unclaimed property where none exists.

Kelmar, which conducts most of the audits for the Delaware Department of Finance and works on a contingent fee, was paid more than $30 million in the second half of 2012 alone.

Others have written about this before, see this BusinessWeek article from 2010. Now there’s a lawsuit, Select Medical Corp. v. Cook. Several years ago, the California escheat scheme was struck down on constitutional grounds, though the objections to it differed from the ones here; it will be interesting to see what happens with the Delaware scheme.

Base 10 only, and no funny stuff.

What’s the difference between more pork and a morepork?

A commenter on the “non-believer epitaph” thread writes,

“Epitaph” is probably used for “epithet” more often than “epithet” is. I can’t help but wonder if it’s only a matter of time before epithet becomes an archaic word and epitaph replaces it completely.

This, I think, overestimates the frequency of the error. A quick Google search for “racial epithet,” for instance, yields 154,000 hits; “racial epitaph” yields 14,600, some of which are references to the error. Searches I’ve done with other likely adjectives gave me similar results. Maybe matters are different in speech than even in the informal writing present on the Internet, but I know of no evidence of that.

Part of the reason for such illusions, I suspect, is that erroneous usages are jarring and therefore noticeable; we therefore remember them more than we remember the correct usages. In any event, it seems that in this instance, the “epithet” / “epitaph” distinction is, at least at this point, pretty strongly maintained.

Some recent conversations I’ve heard about “positive rights” and American legal traditions made me want to repeat something I’ve written before: While it’s true that the U.S. Constitution lacks some of the “positive rights” that people sometimes discuss under that label (e.g., a right to shelter, to medical care, to a subsistence income, and so on, it does secure other positive rights; and indeed, some positive rights are a longstanding feature of American legal traditions. I think such rights should remain limited, but I think one shouldn’t deny that they exist, and are in some measure secured by the U.S. Constitution (and state constitutions).

First, some definitions. The term “right” is a broad one, which encompasses many different kinds of entitlement.

1. Rights can be against the government (e.g., the freedom of speech or the right to keep and bear arms) or against private entities (e.g., the right to be free from trespass, negligent or intentional injury, or defamation).

2. Rights can be constitutional (e.g., the freedom of speech), statutory (e.g., copyright, which is authorized by the constitution but actually secured by Congressional statute, or freedom from many kinds of private discrimination), common-law (e.g., historically, rights to be free from private trespasses, negligence, defamation, breach of contract, etc.), or contractual, depending on which source of law secures those rights.

3. Rights can belong to individuals, associations of individuals (churches, partnerships, corporations), or governments (especially when the government’s right is a right asserted against other governments). Some people claim that governments can only have “powers,” not “rights,” but that’s not the way American legal usage has operated (see here for sources).

4. Rights are generally judicially enforceable, but they may also be broadly agreed on as entitlements even when the courts don’t step in. For instance, most people would say that everyone has a right to police protection, even though such a right may be unenforceable. We think the government ought to provide that protection (subject to manpower constraints, and possible police and prosecutorial discretion not to enforce certain relatively petty laws). If the government fails to provide such protection, we would think it’s doing something wrong, and the political process would often correct this.

So this is something of a right (especially when the judgment is about the government’s proper role, and not just judicially enforceability). Likewise, the constitutional command that Congress protect each State from invasion is probably not judicially enforceable; but one can characterize this as a right of a state.

5. Rights can be negative rights, which is to say (quoting Black’s Law Dictionary), “entitling a person to have another refrain from doing an act that might harm the person entitled.” Some examples: Free speech is a negative constitutional right against the government. My property rights in my land are a negative constitutional right against the government and a negative common-law/statutory right against private entities.

6. Rights can be positive rights, which is to say “entitling a person to have another do some act for the benefit of the person entitled.” Some examples: The right to demand that the government enforce your contracts is a positive constitutional right against the government). The right to public education under those state constitutions that secure such a right is a positive state constitutional right against the government. The right to get money under an annuity you’ve bought is a positive contractual right against a private entity. A child’s right to support from his parents is a positive common-law and statutory right against a private entity.

7. Rights can be equality rights, which is to say rights to be treated the same way that others who differ only in certain particulars are treated. Some examples: The right not to be discriminated in government hiring is a constitutional and statutory equality right against the government. The right not to be discriminated against in private hiring is a statutory equality right against a private party. Such an equality right may end up being a right to get a certain benefit, but only when the government or the private party is already giving the benefit to others.

8. Rights can also be rights to participation in government functions, such as the right to vote (secured by various state and federal statutory provisions, and in some measure by some state and federal constitutional guarantees). These are in a sense positive rights, but not quite the same as other rights.

Continue reading ‘Positive Rights, the Constitution, and Conservatives and Moderate Libertarians’ »

From an AP story about trouble in Pakistan (thanks to Thomas Asch for the pointer):

Most of the deadly attacks targeting Shiites in Pakistan have been carried out by a group affiliated with the SSP. Yet the renamed SSP is fighting elections as part of a coalition of six radical religious parties. Maulana Ahmed Ludhianvi, the leader of the SSP and a candidate, said the coalition has 300 candidates running for election. His party placards often hurl abuses at Shiites, calling them kafirs, or non-believers.

The non-believer epitaph is also widely used in reference to Ahmedis, who consider themselves Muslims but have been explicitly declared non-Muslims in Pakistan’s constitution. As well as violent attacks on its members, Ahmedi leaders told the AP they have been singled out with a separate electoral roll that identifies them as Ahmedis. The separate list also gives their addresses, making them easy targets. Security was tightened after a brutal attack in 2010 when militants simultaneously hit two Ahmedi mosques in Lahore killing more than 100 people and wounding scores more.

Sadly, the use of “epitaph” for “epithet” here might be less inaccurate than such a mistake usually is. For a case actually involving derogatory epitaphs, see Purtell v. Mason (7th Cir. 2008) (though these were on fake tombstones, not real ones).

This very interesting Washington Post story discusses some linguists’ controversial claim that they have identified a 15,000-year-old “proto-Eurasiatic” language superfamily (thanks to Paul Milligan for the pointer); I can’t speak to the merits of the claim, of course, but here’s one passage from the newspaper article that struck me (italics added):

In addition to Indo-European, the language families [within proto-Eurasiatic] included Altaic (whose modern members include Turkish, Uzbek and Mongolian); Chukchi-Kamchatkan (languages of far northeastern Siberia); Dravidian (languages of south India); Inuit-Yupik (Arctic languages); Kartvelian (Georgian and three related languages) and Uralic (Finnish, Hungarian and a few others).

They make up a diverse group. Some don’t use the Roman alphabet. Some had no written form until modern times. They sound different to the untrained ear. Their speakers live thousands of miles apart. In short, they seem unlikely candidates to share cognates.

Well, if they don’t use the Roman alphabet, imagine how different from Indo-European languages — or from each other — they must be!

UPDATE: Prof. Sally Thomason (Language Log) has a substantive response to the “proto-Eurasiatic” theory.

PBS’s Constitution USA with Peter Sagal premieres tomorrow, Tuesday, May 7, and runs each Tuesday until May 28; it sounds like a very interesting project. The show will include, among many other things, interviews with Akhil Amar, Randy Barnett, Jody Freeman, Rick Garnett, P.J. O’Rourke, Jack Rakove, Judge J. Harvie Wiklinson, and me. Here are clips with O’Rourke and with me:

Little known fact: This is my second brush with Sagal; the first happened in late 2000 or early 2001, when I was a call-in contestant on Wait Wait ... Don’t Tell Me! (And, yes, I did win Carl Kasell’s voice on my answering machine.)

UPDATE: My quick glance through the series’ Web site didn’t reveal to me that our own Randy Barnett was also interviewed, so I originally didn’t include him in the list above; I’ve corrected this since.

Here are the relevant details from the affidavit in support of the arrest warrant:

That, on February 25, 2013 at about 0855 an email was sent to the Student Bar Association (SBA) email account, (SBAIULAWSTUDENT@uconn.edu) which is located on the University of Connecticut School of Law, at 45 Elizabeth Street, Hartford, CT, from the account of a UConn Law Student named Anya K. Bargh (ANYA.BARGH@students.law.uconn.edu). This email stated: “Let’s celebrate diversity by having the next dean NOT be Jewish”

That, on February 25, 2013 at about 0910 hrs another email was sent to the SBA from Bargh’s UConn Law account stating: “Here’s a hint, um, getting pretty sick from our all jew cast with a nigger on top”. That, the emails were opened by a Student Bar Association Committee member, Jessica Signor. Signor said this email stated: “Let’s celebrate diversity by having the next dean NOT be Jewish” was in response to an email that the Student Bar Association had sent all the students in reference to the new Law School Dean Search Committee. The Faculty/Staff and students who viewed these emails were offended and upset by the email.

That SBA President Franklin Perry also received the emails. He said that during his experience here at UConn Law School, this is the first time in 3 years he had ever experienced anything close to bigotry. Perry said he is an African American male and was shocked and in disbelief. Perry said he doesn’t want the University of Connecticut in general to be affected by the perception of this type of person. He said he feels the University does not affiliate with these types of people. Perry said at one point he thought Bargh was aiming these comments on him, because he is African American and the President of SBA. Perry said after they forwarded the email to Dr. Brown (their advisor) he found out that the UConn Police Department was investigating the incident and feels it will be handled and taken care of.

That SBA member Matthew Loftus said he went to his apartment and opened up the SBA’s email account and found the email from Anya Bargh. Loftus said the subject line was a reply for the Dean Search Committee. Loftus said the email read: “To celebrate diversity, let’s have our next dean not be a Jew.” Loftus said he thought this was offensive and out of line. Loftus said when he closed that email, he realized Anya Bargh had sent another email and he opened it and it read: “here is a hint, I am getting pretty sick of your all jew cast with a nigger on top.” Loftus said he read it three times could not believe that anybody in law school could give voice to that kind of ignorant hate. Loftus said he is a white non-religious person and was offended by the email. Loftus said he notified the rest of the executive board of the SBA and asked them how this situation is being handled. Loftus said he does not know Anya personally nor had taken any classes with her at the law school. Loftus said if there is a crime that Anya could be charged with, he would like to see her get arrested for it. Loftus said if Anya cannot be arrested he would hope she get expelled from the law school....

That, while this affiant was investigating this incident, this affiant found some accounts under Bargh’s name registered with Yahoo!. Bargh had two Yahoo Flickr accounts under the names of: “anyabargh” and “AKBarbies.” In the AkBarbies public photo screen account, Bargh had written some disparaging remarks to Professors on the Law School Campus. That, Bargh had made some anti-semitic remarks and remarks of a sexual nature. Bargh made a remark about a Professor Peter Lindseth that said “honestly, peter, I hate you so much I would like to see you butchered and shit out like dog food” and “Mr. Lindseth will you please let me such your cock again?”, “It’s over, peter, you’re a faggot and that’s all. Not cute.” These are just a few comments, that Bargh made about Lindseth. Lindseth said when he heard about these comments, he became very upset and afraid for his safety and the safety of his family. Lindseth told this affiant that Bargh is trying to ruin his reputation with these remarks.

That, the affiant became aware that Bargh had made comments about Professor Michael Fischl. Fischl said in the course of his interview with the affiant, he learned to his dismay that he remains on Bargh’s “radar”. Fischl said the affiant showed him one Internet posting by Bargh and read a second one. In the former, Bargh referred to Fischl as a “faggot” with a “gay classroom routine” who should be fired and sent back to Florida (where he had taught before coming to Connecticut in 2006). Fischl said in the other posting, Bargh stated that she was “horny” and wanted to be “slammed” by Fischl and two other professors. Fischl said this does not strike him as a school-girl crush or just letting off steam or fantasies on the Internet. Fischl said the bizarre combination of violent sexual imagery and homophobic slurs represents a direct and vicious attack on him, and her continued fixation on wanting to see him lose his job makes her afraid of what else she would do – beyond fabricating criminal and sexual harassment charges, posting vicious slurs on the Internet – to bring harm to him, Fischl gathers he is not the only one being targeted by Bargh. Fischl said the era of Newtown, Virginia Tech and Aurora, it is extremely worrisome to him that Bargh will eventually escalate her attacks and bring physical harm to him and/or others. Fischl said he sincerely hopes Bargh can get the much-needed help, but he is desperately concerned that she be stopped in the meantime.

Professor James Stark was also mentioned under Bargh’s Flickr account comments. It stated “Fuck you James Stark. You owe me $3000 in pig fat.["]

This affiant has spoken to these three professors that Bargh mainly targeted in her Flickr account and they all have had negative encounters with Bargh, either because of the grades they gave her or she mistook their acts of kindness to help her succeed in law school as sexual advancements. Bargh has filed complaints against Professors when she receives an unacceptable grade and the Professors feel that Bargh is tarnishing their reputations, especially when she posted these negative remarks on Social Media....

Above The Law has a summary of the story, with links to news accounts; the Hartford Courant likewise reports on it. Bargh wass arrested for second degree breach of the peace [53a-181] and second degree harassment [53a-183].

Bargh seems like a foul individual, and it’s possible that she might be mentally unbalanced to some extent. (My sense is that the latter is what some of the people quoted in the warrant are worried about.) It’s also possible that one of the statements that she posted on her Flickr account — “honestly, peter, I hate you so much I would like to see you butchered and shit out like dog food” — might be a constitutionally unprotected “true threat” of violence, though I doubt it. (State v. LaFontaine (Conn. Ct. App. 2011) also suggests that the harassment statute isn’t properly used to prosecute threats, since threats are covered under “the two criminal threatening statutes, General Statutes §§ 53a-61aa and 53a-62.”) Likewise, some of the posts on her Flickr account might be libelous, if they are seen not as hyperbole or trash talk but as factual allegations, though again I doubt it, and in any event Connecticut doesn’t criminalize libel.

But the bulk of the statements, including the ones that the arrest warrant notes most prominently, are fully constitutionally protected. If a student wants to e-mail the student government to express hostility to Jews or blacks, and to urge that there be fewer Jews and blacks in the law school’s leadership, that’s her First Amendment right. (Indeed, even leaving personal racist slurs on a government official’s office voicemail is constitutionally protected; sending such opinions to an impersonal student government e-mailbox is even more clearly protected.) Likewise, what someone posts on her Flickr account, Facebook account, and the like is constitutionally protected — including if it expresses a wish to be “slammed” by a professor, or insults the professor, or expresses a wish that the professor be fired — unless it is indeed a “true threat” of criminal conduct or a punishable false statement of fact about someone.

It’s rare to see an actual American “hate speech” prosecution, largely because courts recognize that there is no “hate speech” exception to the First Amendment; but this seems to be one example. I am told that the case has been continued until May 29. If anyone has more facts on the story, I’d love to hear them.