Weapon of Putin's war, anti-gay law jars NHL in US

The NHL Chicago Blackhawks Sunday will host an annual Pride Night, but the team will not be wearing warm-up pride jerseys as intended, for fear of jeopardizing the safety of Russian players and their families.

Yesterday I got to talk about the story with Sasha-Ann Simons of Reset on WBEZ Chicago Public Radio. You can hear the segment online. HT @ ace producer Micah Yason.

WBEZ sports contributor Cheryl-Raye Stout related the facts and layered some nuance on the story. She expressed concern that Blackhawks staff had not consulted their three Russian players. In a Philadelphia Flyers case in January, a player refused to wear a pride jersey, citing his Russian Orthodox religion. It's unclear where the Russian Blackhawks stand.

No one disputes, though, that wearing the jerseys might be problematic for the players as a matter of Russian law and policy. In December 2022, Russia doubled down on the 10-year-old anti-gay law that was a source of controversy during the 2014 Sochi Olympics and the 2018 FIFA men's World Cup.

Under international pressure, Russia was permissive in enforcement of the law during those tournaments. But the failure of the International Olympic Committee and FIFA to reconcile their bold anti-discrimination rhetoric with host-country legal jeopardy for athletes and fans was a bad look and did no favors for human rights. More or less the same drama just played out again with the FIFA World Cup in the fall in Qatar, where homosexual acts are criminalized.

As enacted in 2013, the Russian law imposes civil fines on persons and business, and detention and deportation for foreigners, who engage in "propaganda" promoting same-sex relationships. Propaganda, though, really means any representation of social acceptability, including even the rainbow flag.

The law was enacted as a child protection measure and referred only to expression to children, though that scope encompassed mass media. In 2022, President Putin signed into law an amendment to broaden the law to cover expression to any person, child or adult, and to make plain that trans representations are prohibited, too.

Russian refugees march in New York in 2013.
Bosc d'Anjou via Flickr (CC BY-NC-SA 2.0)

Thus, a Russian athlete photographed wearing a pride jersey in America might face legal repercussions upon returning home. But the risk is really much greater than just civil fines, I explained to Simons on Reset. Informally, the law has signaled indifference by Russian authorities to brutal violence inflicted on LGBTQ persons, or even persons suspected of being LGBTQ, by vigilantes, if not law enforcement. An athlete abroad fairly might fear such reprisal upon returning home, or fear for her or his family meanwhile.

One thing I did not get to say on Reset, that I think is important, is that Putin's expansion of the anti-gay law is complementary of his war in Ukraine, because he perceives both as integral to preserving Russian identity against Western acculturation. Foreign Policy called the issues two sides of the same coin, and Putin has spoken of Western territorial aggression and social policy in the same breath. Doubling down on the anti-gay law in December was calculated as just another salvo in the war. That means, if Brittney Griner were not warning enough, that Putin is prepared to weaponize the law.

Robbie Rogers, 2013
Noah Salzman via Wikimedia Commons CC BY-SA 3.0

Our Reset discussion touched on other related matters, such as the Iranian side's protest at the Qatar World Cup, which I wrote about here in November and spoke about in Poland. I've written previously on the World Cup and sexual equality (with Jose Benavides), the World Cup and human rights, and football and development. 

A paucity of representation in top-flight world sport indicates that laws such as those in Russia and Qatar are hardly the only source of hostility toward LGBTQ athletes. In 2022, in the run-up to the men's World Cup, there was only one openly gay international footballer, and he didn't make the final cut for Australia's squad in Qatar. (There are openly lesbian players in women's world football.)

A good read in this area is Coming Out to Play (2014), an autobiography by Robbie Rogers, co-authored with Eric Marcus. An American and a Christian, Rogers played for Leeds United in the UK and for the U.S. Men's National Team. In 2013, he publicly disclosed that he is gay at the same time he announced his retirement from football, though he returned to the sport to play for four more years with the LA Galaxy in the U.S. MLS.

In wake of Stanford free speech fiasco, Duncan models civility, and dean surprises with powerful letter

Abortion rights rally at Stanford Law in 2022.
(Suiren2022 via Wikimedia Commons CC BY-SA 4.0)

After the brouhaha at Stanford Law School in which protestors disrupted a lecture by Trump-appointed U.S. Circuit Judge Kyle Duncan, Stanford Dean Jenny S. Martinez this week stood up for free speech on campus.

There are video and audio recordings aplenty on the internet if you want to learn more about what happened March 9. Here's David Lat with the play by play. For my money, the take-away is that a guest federal judge was treated disrespectfully—dare I say uncvilly?—in an effort to silence him, and even a school administrator joined in the effort. That must have been the dean's take, too, when she issued an apology to Duncan, which drew a disruptive protest of her office in turn.

Martinez's letter is masterful and worth a read for the First Amendment refresher and expression of commitment to academic freedom at even a private school. She put the protesting administrator on leave and pledged mandatory educational programming for the student body on free speech and legal professionalism. 

Frankly, I was shocked. I do not expect deans in today's legal academy to stake out clear and strong positions on, well, anything other than which way the wind is blowing.

Today Duncan appeared at Notre Dame Law School and talked about the incident. His remarks and the Q&A livestreamed and are available on YouTube. To be fair, many renditions of what went down at Stanford report rudeness from both sides, whoever struck the first blow. However so, there was none of that at Notre Dame. Duncan's remarks were unremarkable, but that struck the right tone. The thrust of his assessment was that zealous disagreement is laudable, but shouting down one's opponent or merely vituperating one's ideological adversary does nothing to enrich the marketplace of ideas. Like me here, he lauded Martinez's letter.

In a curious coincidence, and really the only reason I throw my two-cent hat into this ring, I today (at last) finished legendary lawyer Robert Corn-Revere's superb 2021 book, Mind of the Censor and Eye of the Beholder: The First Amendment and the Censor's Dilemma.  The book could not be more on point in the Duncan matter.

Mind of the Censor is chock full of engaging prose and a paean to the freedom of expression in our troubled times. But it's the final chapter that delivers the biggest bang for the buck with a delightful Jeff Foxworthy-esque list of 10 reasons to suspect "you might be a censor."  And apropos of Duncan's comments today, Corn-Revere's number 8 reads, "You Might Be a Censor if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights."

I wrote just this week about "civility" being deployed as a new, conveniently vague code word to suppress academic freedom. To be clear, I wasn't speaking against civility. The problem arises in the misuse of the word to differentiate speech one wants to hear from speech one does not want to hear.

It's OK to disagree with Duncan, indeed, to disagree vehemently. He spoke today of the challenge all judges face in remaining open to the possibility that they are wrong in their preconceptions. Civility is about respecting other people regardless of agreement or disagreement, and acting ethically, accordingly. Thus, willingness to hear challenges to our thinking is part and parcel of civility and goes hand in hand with an expectation that others will hear our challenges, too.

I'm really not wrong about this.

'Civility' is code for conformity

The Massachusetts Supreme Judicial Court two weeks ago struck down a town policy purporting to require civility in public meetings. The town policy resembles attempts to restrict academic freedom.

Board meeting, via Southborough Access Media video
(Kolenda at center).

'Civility' in Politics

In December 2018, Southborough, Massachusetts, resident Louise Barron took advantage of a public comment period at a town board meeting to call out board members on fiscal policy and, ironically, compliance with state open meetings law. Though not obliged to, board members responded. The discussion became heated, resulting in Barron calling one selectman, Daniel Kolenda, "a Hitler," and Kolenda abruptly ending the comment period and expelling Barron. (The meeting is on YouTube (cued). Read more at Wicked Local.)

Board policy provides for an open public comment period for extra-agenda items with this admonition:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.

Barron challenged the policy and her expulsion under the freedom of assembly and freedom of speech provisions of the 1780 Massachusetts Declaration of Rights, articles 19 and 16, respectively. Barron forewent challenge under the younger (1791) First Amendment to the U.S. Constitution to keep the case in state court. 

And just as well. The Massachusetts Declaration is a revered document in its own right in American history and global human rights, and the Massachusetts Supreme Judicial Court has not hesitated to construe its provisions as more protective of civil rights than the federal standard. Indeed, for many years, well before I came to work in Massachusetts, I taught a public seminar on the First Amendment for the Freedom of Information Foundation of Texas and used the Massachusetts Declaration to demonstrate the close connection of FOI and assembly.

Article 19 provides, "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

In teaching freedom of information law, I often shorthand the constitutional context of access law as the "flip side of the coin" of the First Amendment. The idea is that the freedom of speech is meaningless, especially in the core protection of political expression, if one does not know the facts to speak about.

The coin characterization is useful, but it's not entirely accurate. The First Amendment recognition of assembly as ancillary to expression aptly indicates an interrelationship that is more an intertwining than a duality.

Board meeting, via Southborough Access Media video
(Barron at right).

In the opinion of the court, Justice Scott L. Kafker recounted Article 19's "illustrious" history.

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ... [Article] 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble.... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.... 

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low ... [to speak his senti]ments of public Affairs.".... Town inhabitants, he wrote, "are invested with ... the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." .... "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants ... acquired ... the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns ... that the sentiments of the people were formed ... and their resolutions were taken from the beginning to the end of the disputes ... with Great Britain." .... Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." ....

Cousins Samuel Adams and John Adams
(via JohnAdamsInfo.com)

The court had little difficulty concluding that the town policy thus ran afoul of article 19. 

There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.

The court furthermore held the town policy overbroad and vague in violation of the article 16 freedom of speech. The case did not require the court to determine whether the First Amendment public forum doctrine applies to article 16 problems, the opinion explained. Massachusetts precedents already establish that content-based restrictions of political speech are subject to strict scrutiny. Worse, the court reasoned, the policy is viewpoint based, as it allows "polite[] praise[]" of public officials while condemning "rude[] or disrespectful[] critici[sm]."

Well reasoned as it is, the decision in Barron v. Kolenda, No. SJC-13284 (Mar. 7, 2023), does not break new ground in freedom of speech, even in Massachusetts law. And the case has been well reported with commentary, for example by J.D. Tuccille for Reason ("Let Massholes Be Massholes, Says Bay State's High Court"), and by Pioneer Legal, The New York Times, and the Brennan Center. What enticed me to write about the case is the likeness of the civility code to efforts to extinguish academic freedom.

'Civility' in the Workplace

The go-to code word on American college campuses to curb faculty freedom has been "collegiality." Introducing a 2016 report, the AAUP explained:

In recent years, Committee A has become aware of an increasing tendency on the part not only of administrations and governing boards but also of faculty members serving in such roles as department chairs or as members of promotion and tenure committees to add a fourth criterion in faculty evaluation: "collegiality." For the reasons set forth in this statement, we view this development as highly unfortunate, and we believe that it should be discouraged....

.... Historically, "collegiality" has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of "collegiality" may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display "enthusiasm" or "dedication," evince "a constructive attitude" that will "foster harmony," or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.

I witnessed this problem in action in those "recent years." "Collegiality" as an excuse to demand conformity was key in prompting me to write and speak in 2009 and 2010 about the importance of what I termed "penumbral academic freedom." 

Are you part of "the team" at work?
(Rawpixel Ltd via Flickr CC BY 2.0)

The problem has only worsened. In fact, I see the "collegiality" expectation as a piece of the broader problem of corporate ideology that insists on everyone being a "team player." That's the coded language designed to alienate workers who hesitate to take on extra duties or to give up personal time without fair compensation. Too long in coming, the "quiet quitting" movement is a direct response to this self-serving worldview.

Though "team speak" is not a specially academic problem, the ever more corporatized public university embraces the jargon. Routinely, I hear my work for a public entity described as "public service." The characterization is invariably paired with a demand that I take on some additional responsibility with no more, if not with less, compensation, and certainly with less compensation than a similarly skilled colleague at a private institution.

The rhetoric is exhausting. I'm not on your "team." The faculty is not my football side. The office is not my church. The institutional "mission" is not my creed. Rather, I do a job. I get paid for the job. Quid pro quo. Often, I enjoy my work, and sometimes, I'm good at it. But it's work. Then (even when the switch is merely virtual) I go home. Where I don't work for anyone else. Where I have a family and a life. Where I hope to win the lottery and quit my job.

That arrangement should be a source of pride, not shame. A public institution performing a public service is no less laudable because its staff is paid rather than volunteer. When administrators, especially handsomely compensated deans and chancellors, break out the "public service" rhetoric, hat in hand, I want to ask why they cash their paychecks, if they're so committed to "public service."

Just as I digested the court's Barron decision and commentary last week, Professor Robert Steinbuch, a (genuinely collegial) colleague at another public law school, told me about a proposed amendment to his school's selection criteria for distinguished professorships. 

Apparently, there was dissatisfaction by some faculty, I assume for the very reasons the AAUP warned, that "collegiality" was an express factor in the assessment. Thus, the law school faculty development committee proposed changes including the following (red-ink deletions and additions as in original).

In awarding named professorships, the Dean shall consider criteria in addition to a candidate's meritorious work in their particular field, including but not limited to donor specifications associated with the title, the overall mission of the law school, and continued excellence in scholarship, teaching, service, civility, and respect and collegiality as outlined in the Bowen Faculty Handbook, and established University policy, or the Association of American Law Schools Best Practices.

....

III. SERVICE & COLLEGIALITY

....

In the space provided below, please describe any additional information you wish to provide reflecting exemplary service rendered in the spirit of civility, respect collegiality and collaboration at the law school and the university level and wider recognition at the national or international level.

....

Self-Assessment: Using the categories of scholarship, teaching, service, civility, and respect and collegiality in this Application, in the space provided below, please provide a candid assessment of how you would represent this Named Professorship while you held the award.

I suppose that any candidate selected for a distinguished professorship at this public law school, like anyone commenting on the performance of public officials in Southborough, Massachusetts, before Barron, "must be respectful and courteous" and refrain from the "rude" and "personal." Faculty governance is all well and good, as long as no one is offended.

Let the revolution be quelled.

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.