More on the Murphy allegations of speech-basedplacementonno-fly list, and on reactions to questio

Wed Apr 11 12:49:53 PDT 2007

Please.  I really have no idea what the best explanation is for what 
apparently happened to Professor Murphy.  I also have never met 
him.  But is it too much to ask that we refrain from personally 
ridiculing the man as we discuss the issue?  Orin proves in his post 
on VC that it's possible to marry civility and substantive 
criticism.  Can we try that here too?

At 03:32 PM 4/11/2007, David Bernstein wrote:
>If you follow Orin Kerr's commentary at Volokh.com, you will find that Prof.
>Murphy IS NOT in the best position to determine anything, because he has a
>grandiose sense of his own importance, and, as Orin writes, his additional
>commentary on the incident is running into UFO sighting testimony.  Oh, and
>rather than his luggage being "lost", it was delayed for a whole few hours,
>with nothing missing or damaged.  I'd just as soon ask Prof. Murphy who
>killed JFK or where Jimmy Hoffa is buried as accept his assessments as
>valid.
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
>Sent: Wednesday, April 11, 2007 2:17 PM
>To: conlawprof at lists.ucla.edu
>Subject: RE: More on the Murphy allegations of speech-basedplacementonno-fly
>list, and on reactions to questio
>
>As I have commented to people privately, I do think there is a bit more
>here, though hardly enough to make things a slam dunk case.  Part of
>what you had to be there for was some evaluation of the agent.  How
>casual was the remark, what was the basis, did the person seem
>authoritative, intelligent, etc.  In short, you might learn more than
>whether this was a joke or not, but again, hardly enough for certainty.
>Professor Murphy, of course, is best placed to make that evaluation.
>Then you have to make some decisions about his capacity to make an
>evaluation.  Perhaps he is guilty of thinking too highly of himself.
>But my sense of the universe is that this is a person who is reasonably
>sober.  Certainly, a great many people on the web have jumped to equally
>unwarranted strong conclusions about Murphy based on his account.
>
>I confess my own, fairly uneducated, sense of the universe, is that
>someone who had some access to these things took offense at some things
>Murphy said or did, that what went on is not at all systematic, but
>targeted.   Put differently, I suspect, that this was not an effort by
>the Bush Administration to silence anyone, but an effort by some unknown
>person to annoy Professor Murphy, possibly because of his speech,
>possibly because of a low grade 5 years ago.  As even the Transportation
>Security people indicate, the process by which he was selected was not
>entirely (or even mostly) random.   Not exactly implausible the way
>these things operate, not exactly provable either.
>
>MAG
>
> >>> Douglas Laycock <laycockd at umich.edu> 04/11/07 1:05 PM >>>
>
>
>   I am quite prepared to think ill of the Bush Administration, but I
>think there is just not much here in the Murphy incident.  It all
>depends on the casual remark of the airline agent, who is not likely
>to know anything, and if the agent's statement were accurate, we
>should have heard of more examples before this one.  The defenders of
>the Administration are winning this argument on the merits.  And if
>there were anything objectionable going on, incompetence is far more
>likely than malice.
>
>   Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
>
> >         I realize that sometimes, "you had to be there," in the
>sense
> > that the case rests on the witness's account of facts that he
>observed.
> >
> >         But as I understand it, the contested question is whether
>Prof.
> > Murphy was added to some occasionally-screen list somewhere in some
> > FBI/TSA/etc. back office.  Neither Prof. Murphy nor we were there.
> > Another question is whether Prof. Murphy's name popped up on a TSA
> > computer with some special "we've had him under suspicion" flag (on
>the
> > first leg of the flight, not the second) -- even if that ever
>happens, I
> > take it Prof. Murphy wasn't there to look at that computer screen.
> >
> >         Prof. Murphy was there to talk to the airport (or was it
>TSA?)
> > employee, and to hear the employee's assertion that speaking at
>antiwar
> > events would get one placed on the occasionally-screen list.  But I
> > don't doubt Prof. Murphy's testimony about what he heard; I am
>simply
> > not sure why we should think the employee was speaking accurately.
>So
> > I'm not sure why being there would tell us much (except that it
>might
> > rule out the possibility that the employee was simply joking,
>unless he
> > was joking in a very deadpan way).  What am I missing here?
> >
> >         Eugene
> >
> >> -----Original Message-----
> >> From: conlawprof-bounces at lists.ucla.edu
> >> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark
>Graber
> >> Sent: Wednesday, April 11, 2007 8:59 AM
> >> To: conlawprof at lists.ucla.edu
> >> Subject: RE: More on the Murphy allegations of speech-based
> >> placementonno-fly list, and on reactions to questio
> >>
> >> A few small points on this and other points.
> >>
> >> 1.  To some extent, this is an instance of "you had to be
> >> there."  So a good deal of the concern is that, at least in
> >> my opinion, this is a person with very good judgment who is
> >> not likely to fly off the handle.
> >> I think the story plays out somewhat differently with a
> >> different person.
> >>
> >> 2.  My sense is that there is something fishy going on that
> >> is not entirely innocent, but that the fishiness is
> >> consistent with a number of concerns between pure randomness
> >> and being on the no-fly list.
> >>
> >> MAG
> >> _______________________________________________
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> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
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> >
> >
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI  48109-1215
>   734-647-9713
>
>Links:
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Trevor W. Morrison
Associate Professor of Law
Cornell Law School
116 Myron Taylor Hall
Ithaca, NY 14853
ph. 607.255.9023
fax 607.255.7193
SSRN author page:  <http://ssrn.com/author=372569>http://ssrn.com/author=372569

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