Forwarded message from Robert Sheridan: FW: Muzzled?
Mark.Scarberry at pepperdine.edu
Fri Sep 24 12:32:00 PDT 2010
I am forwarding to the list this message from Robert instead of just
letting it go through unmoderated, because I object to the Notice at the
beginning, which initially appears to be from the moderators. Of course
anyone who reads it at all carefully in the context of prior posts will
see that it is satirical, but the Internet is forever and our archives
are open. I will leave it to list members to decide what merits, if any,
Robert's post may have, and whether they wish to read it or simply
delete it. I will say that Robert's current description of how he came
to post twice in two minutes after my polite request to him not to post
so frequently to conlawprof is a substantial amplification of what he
initially said. That request was made to him and to another member who
similarly is not and apparently never has been a full time lawprof. His
initial explanation, as I understood it, simply was not credible, as I
explained in a post to the list in response to him. If anyone wants to
see the posts in which I made my request and in which he responded (less
than collegially), let me know, and I will forward them off list.
In light of Robert's amplification of his explanation for the two quick
posts, I will discuss this further with my co-moderator, who it turns
out had not had as much opportunity as I'd thought to consider this
From: Robert Sheridan [mailto:rs at robertsheridan.com]
Sent: Friday, September 24, 2010 9:18 AM
To: CONLAWPROFS professors
Notice: This message has been officially sanctioned and approved by the
moderator as acceptable for viewing by list members as not being too
frequent, too repetitious, too tedious, too off-topic, too political,
too long, too much of a "rant," or otherwise unduly injurious to your
peace of mind or health, assuming you are reading it on the list in the
first place, as it is being or has been "moderated," another word for
"censored." I appreciate the moderator's expansive viewpoint, today, if
this appears eventually, and regret the delay, his doing, not mine.
What is this controversy about?
Some contributors are annoyed with the thread, call it spam, or whining,
liken it to an out-of-order student critical of the teacher, or appeal
to the authority of the "moderator," perhaps in the belief that
deference is due. Others have seen that there might be a problem with
this and have so stated, on and off-list. Thank you.
The moderator has chosen a different tack, however. As will be
recalled, today's problem started when the moderator advised the
undersigned that two posts in apparent quick succession were enough to
impose a hold on posts until 'moderated' by him. I pointed out that
he'd misread the situation in that an earlier post on the 20th/21st was
computer-blocked automatically for running over the 40K byte limit.
This happens when, in replying, you don't delete older messages in the
thread. In such cases the computer-generated error message states that
one may either await moderator approval of the offending post or
withdraw the message. I withdrew the message since a fix was readily
available. I simply deleted the older messages in the thread to come
within the byte limit, and successfully posted a one paragraph post. In
the meantime, however, I had posted another post, on something else.
Time had elapsed between the two original posts but the revised original
appeared shortly after the second one.
Pointing that out should have ended the matter and the ban removed
immediately. Two posts in quick succession have never been deemed an
offense here as far as I'm aware. Yesterday there was another (I
hesitate to say pointless and seemingly interminable discussion, but
that's a matter of taste) on "Originalism." Perhaps that has something
to do with Conlaw but I happen to think it more "political" than "law,"
although I see the connection. Christopher Green and Malla Pollack each
had six posts in one day on that one thread in quick succession.
Presumably they've been "moderated" as well, but I wouldn't count on it.
I'm willing to go so far as to say that there is no chance they have
been moderated. I see a clear personal bias. Mr. Moderator, I daresay,
feels as though he's been challenged. Perhaps he thinks I owe him
deference because Eugene appointed him to his august position as
moderator of The Conlawprofs List. I think he earns his deference by
the way he behaves. I suggest that his actions are wanting.
In the past, I have deferred to Mark Scarberry's wishes, opting out of a
discussion while matters cooled and cutting back on posts. In this
case, however, since I feel as though he has chosen both to single me
out and to take a stand, by appealing, as he has, to list contributors
on the ground that he has been "polite and reasonable" while I have been
"rude and uncooperative," neither of which is correct, I felt the matter
worth discussing, even though some others, predictably, have suggested
letting it go. It's not that simple.
It's your list. You make it work, or not, in the way you want by what
and how you contribute and how you'd like others to do the same,
allowing for differences in manner and style. We're all familiar with
forum and time, place, manner rules and agree with their necessity.
This does not, however, excuse arbitrariness in moderation that amounts
to something worse. I'm simply suggesting that there's now a question
of arbitrariness and of free expression, with the former restricting the
latter, courtesy of the moderator. Mark has hit the cut-off button. If
any other list member has recently been "moderated" in this fashion, now
would be a good time to make note of that fact. So far, I think it's
only yours truly. I've suggested that some guidelines ought to be
established to prevent heavy-handed "moderation," but there's been
minimal discussion of that.
Thus the problem: Who shall be allowed to play in Mark's sandbox, what
may they discuss, and how often? And should we accept uncritically his
ad hoc explanations for his actions? And why should Conlawprofs, of all
people, accept vague, post hoc, non-standard standards in their own
The skin isn't off my back if I don't contribute here, and it is no skin
off yours, except perhaps to the extent that we like to have discussions
arguably related, more-or-less, to Conlaw, including the political
aspect. Slavery was once a political question. Now discrimination on
the basis of race is a matter of equal protection law. The political and
the legal seem to be interconnected to some extent. The question is
whether you'd prefer to shut off another voice in preference to scanning
and skipping, or deleting, or "marking as read," which is everyone's
right and to some extent, burden. This is one price of free expression,
dear First Amendment teachers. This calls to mind the late Prof.
Alexander Bickel's distinction, that an after-the-fact threat of
punishment "chills" free expression while a prior restraint, as here,
"freezes" free expression, depriving the listener, or reader, of the
choice to accept, reject, or even consider, what someone else has to
say. See Floyd Abrams' "Speaking Freely," Ch. 1. If you need this
protection because your ears are tender, then by all means do give
deference to the moderator.
As one member commented off-list, the garbage-to-gold ratio here is so
great that he routinely tunes out most of what is said by all of us in
the hope of seeing the very rare "gold nugget" that he thinks sometimes
appears. My experience with gold-panning in California suggests that
you have to look hard for gold nuggets under the best of circumstances;
they don't just jump out at you. It takes hard work to find gold. You
have to dig. I regret the unavoidable sand and hope you find a nugget
as the result of this discussion, which is why, of course, I bother to
Meanwhile, my message remains on time-delay and subject to being banned,
to protect you, of course, from harm.
I thank you for your interest and sincerely hope that I haven't injured
too many list contributors and have avoided corrupting the young; I
hasten to assure you that I will be most attentive to these concerns in
* Discussions of Originalism are definitely injurious to health.
Wittgenstein runs a close second, but I understand that there are people
who can't let these things go no matter how fervently some of us might
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