Muzzled?

[Mark Graber]

My take on things is slightly different.  This is not a street corner, but a conversation among persons with some expertise and interests on constitutional law and, more controversially, constitutionalism.  As such, I think we might reasonable insist on something similar to the standards we might insist on in a classroom.  One of those standards is respect for our fellow members, whether they be classmates or members of a common intellectual community, no matter how wrongheaded we think their opinions.

I think if a student made arguments of the sort that appear in the penultimate paragraph of this post, we would have a conversation after class.  If they were repeated, I would ask the student to leave the class.  I say this as a political liberal, quite concerned with recent events.  But part of a legal education, I believe, is learning how to say things as a lawyer.

The really "good" news is that Americans who want places to make ad hominem arguments or otherwise preach to choirs have no shortage of fora in which to state their cases.  I remain neutral on the moderation issue, since I think the posts below do little more than embarrass the author, but I confess to preferring the ethics of the classroom to the ethics of the street corner.

MAG

>>> Robert Sheridan <rs at robertsheridan.com> 09/23/10 9:30 PM >>>
  Last evening's post was held up and did not appear until around 9:00 
a.m. this morning, more than twelve hours later.  Part of the deal here 
is that posts appear when posted, not the next day after the thread has 
moved on.

Paul makes the point that since this is not a public list we can 
self-censor.  What kind of list is it?  Who is 'we?'  Are we 
self-censoring or is it Mark?   I was advised by Eugene, when joining 
around 2004/5, that it was a place, indeed one of the only places 
online, for conlawprofs to discuss First Amendment subjects, among 
others.  It appears to be related to the publicly operated school known 
as the University of California, Los Angeles.  It seems to be some sort 
of a 'forum' under the forum rules of Conlaw.  Accordingly, it should 
not be arbitrary in its moderation, which it now is.  It should not be 
subject to vague, subjective, post-hoc rule-making.  Posts should not be 
subject to prior restraint, which is what is happening by withholding 
approval for twelve, or any, hours.

Eugene more-or-less recently left off moderating and handed the task 
over to Mark w/o asking whether list members thought this a good idea or 
taking a vote.  Mark, as far as I know, is not associated with UCLA.  I 
don't know anything about the mystery man to whom he defers.  If I have 
to satisfy Mark's mind as well as his, shouldn't we know about him?  But 
is that what freedom of expression is about, tailoring one's remarks in 
the hope that they will pass muster with the likes of Mark and someone 
we've never heard of?   Mark seems to have taken it upon himself not so 
much to 'moderate' as to 'censor.'  There's a difference.

While I'm happy to know that Mark is forced to read what I write and can 
no longer just skip or hit the delete button w/o missing what merit 
there may be in my posts, I do wish he would take the trouble, as 
moderator, to define a standard capable of being followed that 
distinguishes the political and the constitutional law aspect of matters 
that become grist for this mill, since that seems to have been one of 
his stated objections.

In today's news, for example, the board that oversees schoolbooks in 
Texas is making an effort to see that Islam features not so prominently 
any more in the texts while Christianity is given better shrift.  This 
is FA stuff, but I know that Scarberry, a conservative who teaches at 
Pepperdine, which I think is a conservative institution sponsored by a 
church, might likely favor the school board and reject a post on the 
Texas subject based on some made-up for the purpose excuse such as that 
this is political and not a matter of constitutional law.  My view is 
that political matters are very definitely a matter of constitutional 
law, always was and always will be.  So I ask Mark to define the line, 
otherwise he's practicing 'dog-law,' where you don't tell the dog what 
not to do but kick him when he does it.

Mark may think he's being funny comparing himself to Kim Jong Il, but 
it's a lame joke, as jokes go.  The humor in this instance doesn't serve 
well to deflect the point, that Prof. Scarberry is engaging in behavior 
that he should be ashamed of.

rs


On 9/23/2010 9:01 AM, Scarberry, Mark wrote:
> Robert's posts to this list require moderator approval. I approved his 
> post concerning Gibbons v. Ogden and his post complaining about being 
> on moderated status this morning within an hour after I received an 
> email from the list management system saying that the posts were 
> waiting for approval. The notice to me came in at 8:02am pacific time, 
> and Robert's posts went out to the list (at least I received them 
> as list postings) at 8:48am and 8:50am. I have not blocked any of his 
> posts since putting him on moderated status.
> Some list members have argued or suggested that he should not be on 
> moderated status. Others have expressed views (on the list and 
> privately) supporting the action I took. I've consulted with my 
> co-moderator (Barry McDonald), and at this point the action stands.
> I suppose, since Kim Jong Il (that's "eye-ell" but it looks like a 
> roman numeral II in this font) is ill, I should put in my application 
> to succeed him, given Robert's view of my actions.
> Best wishes,
> Mark Scarberry
> Pepperdine
>
> ------------------------------------------------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu on behalf of Robert Sheridan
> *Sent:* Wed 9/22/2010 9:19 PM
> *To:* CONLAWPROFS professors
> *Subject:* Muzzled?
>
> At 7:56 p.m. this evening I responded to a post regarding the 
> definition of words in which I cited the Marshall opinion in Gibbon v. 
> Ogden and the 'manufacturing' cases (as being interstate in nature, 
> not local) as examples of the redefinition of words.
>
> At 7:56 p.m. this evening, shortly later, I received an email message 
> from the list stating that my contribution was being held for review 
> by the list administrator.
>
> I'd thought we were, thankfully, past this contretemps.
>
> Am I being subjected to the heavy hand of the list administrator?
>
> Has he refused to remove his declared injunction against my posts?
>
> Are my posts being subject to prior restraint based on the vague 
> generalities of being "too political," too "off-topic," or just too much?
>
> Or did he just forget to remove the ban-code?
>
> Which is worse, that he censor me, or that I'm forced to censor myself 
> to comport my posts to his imaginings?
>
> Isn't this what they have to do elsewhere, such as in China & North Korea?
>
> But here?
>
> On a First Amendment site?
>
> rs
>
>
>
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