Professor Jonathan Turley has recently referred to the rapid loss of free speech values on campuses across the United States with special emphasis on Cornell. His post discussing this contains inaccurate and misconceived claims. https://jonathanturley.org/2020/06/12/cornell-professors-declare-informed-commentary-criticizing-the-protests-as-racism/#more-158282
The impetus for his broad attack involves the writings of William Jacobson and criticism thereof. William Jacobson is a securities law clinical professor at the Cornell Law School who holds conservative views that to my mind are over the top. He says, “You send your kids to public schools and colleges, where they are taught from their earliest years that America and capitalism are the sources of evil in the world . . . while socialist and communist systems are more equal and fair.” https://legalinsurrection.com/2020/06/the-bloodletting-and-wilding-is-part-of-an-agenda-to-tear-down-the-country/(6/3/20). In fact, what distinguishes public schools in our federal system is the diversity of messages and values that are reflected in our great country. You would have to look long and hard to find public schools teaching that socialism and communism are more equal and fair than the American system of government. If they exist (I doubt it), they are few and far between. Even in American colleges, the number of communist professors is vanishingly small.
So too, Jacobson steps far away from reality when he writes that, “Concern for black lives, and all lives, is important. But that is not the agenda of the Black Lives Matter movement, they seek to tear down our society to achieve their marxist goals . . . . https://legalinsurrection.com/2020/06/reminder-hands-up-dont-shoot-is-a-fabricated-narrative-from-the-michael-brown-case/(6/4/20).
Although the letter was written sometime earlier, on June 9, 21 members of the Cornell Clinical Law Faculty, writing in their individual capacity, published a letter in the school newspaper: “We are … outraged by commentators, some of them attached to Ivy League Institutions, who are leading a smear campaign against Black Lives Matter. . . . These commentators express rage over the sporadic looting that has taken place amidst the largely peaceful protests, calling for organized manhunts to track down those responsible. Theirs is a form of racism that gives cover to those police who use their batons and tear gas and rubber bullets and fists to silence and maim their critics.. . . These commentators are the defenders of institutionalized racism and violence. They are entitled to their viewpoints. We do not name them, so as to deprive them of a larger platform for their racist speech.”
One can see how Professor Jacobson’s claim about the “Marxist” goals of the Black Lives Matters Movement can be construed as part of a smear campaign. And that smear campaign gives some cover to police brutality, as do other claims he makes about “false narratives” concerning police killings. It is well within the bounds of fair commentary to describe his views as defending institutionalized racism (perhaps he would deny its existence) and violence. It is also within the bounds of fair commentary to characterize the defending of institutionalized racism as a form of racist speech.
Two things to note about the clinicians’ statement: the language used by the clinicians is hard hitting, but the clinicians do not identify anyone as a racist (conscious or otherwise); and second the clinicians acknowledge that the commentators they criticize are entitled to their opinions (which is obviously a recognition of the commentators’ right to free speech).
On June 7, Cornell Law School Dean Eduardo Penalver wrote that Professor Jacobson’s broad and categorical aspersions on the goals of those protesting for justice for Black Americans do not reflect the values of Cornell Law School. At the same time, he indicated that the law school is committed to academic freedom and job security and any discipline against Professor Jacobson for his views would corrode the values of the institution. https://www.lawschool.cornell.edu/spotlights/Statement-on-Prof-William-Jacobson-and-Academic-Freedom.cfm
Turley’s commentary is not fair-minded or careful. He says that there is no mention of free speech or academic freedom in the clinicians’ letter, but the letter says that commentators are entitled to their opinions. In addition to misreading the clinicians’ letter, Professor Turley has not done his homework. He cites Jacobson as saying there was an effort to fire him. But he has not read the statement of Dean Penalver. Dean Penalver specifically indicates that Cornell is committed to academic freedom and job security and that any discipline of Professor Jacobson would be inappropriate.
Turley also mischaracterizes the clinicians’ letter when he cites it to support the view that any questioning of the BLM movement means that you are per se or presumptive racists. This is a decidedly exaggerated reading of the clinicians’ letter. First, nothing in their letter suggests that fair minded criticism of the BLM movement is a form of racist speech. Moreover, claiming that the movement is part of a Marxist conspiracy is unworthy of civilized discourse. This gives the lie to Professor Turley’s headline. The headline suggests that the clinicians maintain in this context that “informed commentary” is racist. Turley's suggestion is that informed commentary should be sacrosanct in the university. The clinicians, however, never suppose that Jacobson’s Marxist conspiracy theories are any part of the category of “informed commentary.”
Finally, in this connection, there is a substantial difference between contending that the defense of structural racism is a form of racist speech and contending that the utterer of the speech is personally a racist.
There is more to criticize in Professor Turley’s excursion into an area where his confidence exceeds his understanding, but I want to briefly mention one. He suggests that the purpose of the clinicians’ letter was to silence Professor Jacobson. No one with the slightest awareness of the Cornell Law School would think that the clinicians who said such commentators were entitled to their opinions were out to silence Professor Jacobson, and similarly no one who knows Professor Jacobson would think that such an effort would be successful. Similarly, no one with the slightest knowledge of the Cornell Law School would have thought that Professor Jacobson’s job was ever in jeopardy or that he was at any risk for discipline.
Professor Turley has no understanding of the Cornell culture. Hopefully, he will learn. And while he is at it, perhaps, he will learn something more about freedom of speech. He specifically chides two of my First Amendment colleagues because he claims the letter violates Professor Jacobson’s free speech rights. This blinks at the fact that the clinicians had a right to speak, and that Professor Jacobson does not have a free speech right to be free of criticism.
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