Tag: first amendment

Marty Peretz, Harvard, and the First Amendment

 I attended the Harvard Social Studies concentration’s 50th anniversary celebration on September 25, well aware of the controversy over the University’s naming an undergraduate research scholarship in honor of New Republic editor-in-chief, Martin Peretz.  Generating the conflict were Peretz’s long history of contemptuous writings about Muslims and other groups and especially his recent, disgraceful statement: “I wonder whether I need . . . pretend that [Muslims] are worthy of the privileges of the First Amendment which I have in my gut the sense that they will abuse.”

Peretz later retracted the statement.  On the eve of Yom Kippur, he also claimed to be atoning, primarily in private, because “in this past year I have publicly committed the sin of wild and wounding language, especially hurtful to our Muslim brothers and sisters.”  But Harvard’s agreement to establish the scholarship in Peretz’s name cast a pall over what should have been a celebration of a wonderful Harvard major.  It was a disappointment to me, many Social Studies alumni, and other Harvard affiliates.  More importantly, Peretz’s initial statement is indicative of disturbing trends that seem to be gathering force now, almost ten years after 9/11.

The reasons that Harvard decided to accept the $650,000 collected by Peretz’s friends, despite his long history of statements displaying contempt for Muslims, Palestinians, and others, remain unclear.  With by far the largest endowment in higher education, Harvard needs the money less than other universities.  It seems therefore that the decision was a misguided effort to honor someone the administration actually believes deserves to have his name permanently attached to the University’s.  Or, more likely, it was an effort to please some of the powerful alumni donors who funded the endowment.   Among many others:  Al Gore; Washington Post columnist E.J. Dionne; top BP attorney Jamie Gorelick (identified in the Social Studies program only as former Deputy Attorney General); and a former co-chair of a Harvard Fund gift committee, Lazard executive and chairman of the New Republic Advisory Board, Larry Grafstein (who I unknowingly sat across from over lunch and with whom I had a pleasant interchange).  
At the event itself, Peretz’s defenders included Dionne, Gorelick, and political theorist Michael Walzer.  They all rejected his views about Muslims and the First Amendment and distanced themselves from some of his other controversial statements.  Asked directly during Q & A about her rationale for organizing the fund, Gorelick noted only Peretz’s decades-old role as a teacher, during his time as a lecturer in the Social Studies department.  In a message this summer that kicked off the fundraising drive, Gorelick had elaborated further that the Peretz fund would “strengthen the College’s commitment to rigorous intellectual inquiry through significant research experiences.” Peretz’s recent writings call into question his own commitment to that end, however.
In defending the fund, Dionne quoted Rodney King asking, Why can’t we all just get along?  Walzer alluded to the many left-wing student protesters of decades past who Peretz ostensibly if secretly helped avoid expulsion or worse.  To catcalls from the audience, he also suggested that a close review of the writings of most in the audience would turn up remarks as questionable as Peretz’s.
Critics of Peretz and Harvard were more numerous and vocal at the event.  Protesters gathered outside and harried Peretz as he walked between buildings.  At the panels, there were sharp questions, particularly about the compatibility between Social Studies’ claims to uphold critical thinking and analytic rigor—and its honoring Peretz.
For his part, Peretz remained mostly silent.  In the original program, he and Robert Paul Wolff, the first head tutor for the social Studies program, had been scheduled as principal lunchtime speakers.  But with the controversy, the program was changed to include only Wolff as principal speaker—and to demote Peretz to brief follow-up remarks, along with other head tutors in attendance.  Wolff gave an impassioned speech about the program, lambasting Harvard for honoring Peretz who sat a few feet away.  Minutes later, Peretz took a stab at his critics for having “started and exploited” the controversy—and for being simply a bunch of “professors who are happy to get applause.” As for himself, he claimed to be happy to rest on the 30 or so messages of support he said he had received from ex-students.
Beyond the incident itself, Peretz’s original statement, despite its hasty retraction days later under a firestorm of criticism, is indicative of a broader and troubling current in the U.S today.  If the Editor-In-Chief of the New Republic can so easily state that the Constitution should protect me—but not those with whom I disagree—its fragility is underlined once again.
Of course, Peretz is free to say almost anything he wants under our First Amendment—even something as foolish as that others should have that right withdrawn by virtue of their religion.  By the same token, Muslims should be free to build the Islamic Center in lower Manhattan, despite the hyping of this exercise in religious free exercise as “offensive.”  Those who oppose gas drilling in Pennsylvania should be free to organize and protest without fear of monitoring by government contractors and agencies in the name of “homeland security.”  And, yes, cranks in Florida have the right to burn holy books.

Different as these cases are and hard as it is for many to accept, “offensive” or politically “dangerous” speech clearly merits protection under America’s First Amendment.  But for an institution like Harvard to celebrate a man who can make such irresponsible statements, thereby suggesting not just their legality but also their acceptability in elite public discourse, undermines the University’s claims to intellectual and social leadership. 


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Sting Operations

Maureen Dowd’s op-ed Stung by the Perfect Sting rattled some cages in the blogosphere this week. Laura McKenna calling her a whiner, implying the post was really about her own bad blogger press. Tim Burke claiming she is dissing bloggers by failing to reference our own grand debates over anonymity. Danny being Danny Drezner accusing Dowd of comparing bloggers to muggers. The column seems widely interpreted as a slam against the new media.

I was sorry that none of these posts engaged the actual story in the article, which had almost nothing to do with the blogosphere per se. Part of this is Dowd’s fault: her argument was poorly executed and buried under asinine introspection (we bloggers would never exhibit careless narcissim.) But look past the fluff and at issue is an important and (yes, Tim) timely legal question raised by not one but two rulings just this month: Should a person’s right to anonymous speech shield him/her against defamation suits?*

Anonymous speech is protected by the First Amendment. But defamation is not. So what recourse does a plaintiff have when slandered anonymously? At Digital Media Laywer, David Johnson explains the “chicken and egg” problem this way:

If trial proves that the speaker is liable for defamation, then his anonymity was not entitled to First Amendment protection and should be disclosed. If trial proves that the speaker is not liable for defamation, then his anonymity was entitled to First Amendment and should not be disclosed. However, disclosure of a speaker’s identity is generally required for a court to determine whether his words were defamatory. In other words, you have to disclose his identity to determine whether his identity should be disclosed.

One way around this is the “summary judgment standard” set out in Doe v. Cahill, a 2005 Delaware ruling on whether or not Patrick Cahill, a City Councilman, could obtain the identity of anonymous blogger John Doe for the purposes of a libel suit. Daniel Solove explained the summary judgment standard in a blog post in that year:

In this case, Cahill was a public figure, and to prevail in a defamation lawsuit, he had to prove that (1) Doe made a defamatory statement (damaging to Cahill’s reputation); (2) the statement was concerning Cahill; (3) the statement was published (disseminated to others); (4) others would understand the statement to be defamatory; (5) the statement was false; and (6) Doe made the statement with actual malice (he either knew it was false or acted in reckless disregard of the truth).

Solove criticizes the New York rulingfor using a looser standard in the case referenced by Dowd. The plaintiff Liskula Cohen, arguably also a public figure, had been vilified on an anonymous blog as “skankiest in NYC” and was only required to show her case had merit to convince the court to order that Google reveal the blogger’s identity. But even if they had used the Doe v. Cahill standard it is hard to see how they would not have ruled in Cohen’s favor. The only hangup may have been the requirement that the plaintiff demonstrate a defendant’s “malice” but this would seem rather an unfair hurdle when a defendant’s identity is unknown. Hence the chicken and egg dilemma.

Did the court make the right choice? Should a person’s right to anonymous speech (generally, not just in the blogosphere) protect them against defamation suits if filing the suit essentially requires knowledge of the defendant’s identity?

Dowd’s key argument is: No. She, however, is talking not only about defamation but also about various pernicious forms of cyber-bullying and hate speech as well. (She is also not, of course, opposing anonymous or pseudononymous deliberative argument ala The Federalist Papers; it is a straw man to claim that she has “conflat[ed] and tar[red] all anonymous commentary because some act rudely on the Internet” when in fact she carefully distinguishes constructive pseudonomity from mere character assassination.)

On this, I’m with Dowd. I am an advocate of pseudononymous (and to some extent anonymous) blogging, but I am against mindless slanderous invective for its own sake. It cheapens political deliberation, distracts us from the issues, and sets a bad example for our children. As a commenter wrote over at Copyrights and Campaigns:

“Having read the Federalist Papers, I don’t recall Publius defaming as ‘skanks and hos’ those who disagreed with the adoption of the Constitution.”

My fellow political bloggers are correct to point out that this behavior is also not representative of most anonymous bloggers or commenters. But that’s precisely the reason to agree with Dowd and with the court’s decision. Ultimately, “Anonymous Blogger” Rosemary Port’s defense rested on the claim that no one takes the blogosphere seriously as a source of facts. According to the ruling:

“The Blogger argues that even if the words [‘skank’ and ‘ho’] are capable of a defamatory meaning, ‘the context here negates any impression that a verifiable factual assertion was intended,’ since blogs ‘have evolved as the modern day soapbox for one’s personal opinions,’ by ‘providing an excessively popular medium not only for conveying ideas, but also for mere venting purposes, affording the less outspoken a protected forum for voicing gripes, leveling invective and ranting about anything at all.'”

To the extent that this perception is true (that is, to the extent that bloggers get tarred in the public eye as mindless opinion-spouters) it’s not because of people like Dowd, but because of people like Port who abuse their anonymity to defame others – an act that is in fact not protected by the First Amendment – and then claim this as some kind of moral high ground.

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*The case raises other interesting questions as well. For example: what is defamation? The court found that allegations of sexual promiscuity count, and I would grudgingly agree, though you could have a whole feminist debate about what that signifies. I also think you could argue, though Cohen did not, that this was not simply defamation but a kind of hate speech – in fact, had the blogger turned out to be male, I think we’d be hearing precisely such claims of misogyny – interesting double standard. Also, Rosemary Port has now sued Google for complying with the court’s order – hard to imagine that she has a case, since Google’s terms of use state it will hand over information if required to do so by the government, but as Solove points out perhaps Google was negligent in failing to go to bat for her? Worth watching to see.

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