My Summer Book Report (2020)

Coronavirus propelled UMass into financial crisis in the spring, and, as a result, law faculty summer research stipends evaporated.  With that change in incentives to compound coronavirus travel restrictions, I found myself with more than the usual time to catch up on reading this summer.  I'm going to try to keep my observations here brief; drop me a line if you want to talk more detail.  (All links are to Amazon.)

Books About Soccer

When I signed off from the blog in May, I wrote about starting two books from Australia, Whatever It Takes: The Inside Story of the FIFA Way and The Aboriginal Soccer Tribe.  The former remains for me the definitive story of the fall of FIFA and corruption of global soccer.  Whatever It Takes was written by whistleblower Bonita Mersiades, once an Australian football executive.  I met her at Play the Game and immediately became a big fan.  I filled out the FIFA story with David Conn's Fall of the House of FIFA: The Multi-Million Dollar Corruption at the Heart of Global Soccer and Ken Besinger's Red Card: How the U.S. Blew the Whistle on the World's Biggest Sports Scandal.  Conn's book gave a thorough global picture, but I didn't enjoy its journalistic perspective as much as Mersiades's animated firsthand account.  Red Card was a compelling take on the story from the U.S. law enforcement perspective; it's a good read for students of U.S. criminal justice.  I especially appreciated it in coincidental tandem with the thoroughly enjoyable TV series El Presidente on Amazon.

By John Maynard, The Aboriginal Soccer Tribe is a tribute to the best players of Indigenous Australian ancestry and their experiences and undersung impact on soccer in Australia.  Joshua Nadel's Fútbol: Why Soccer Matters in Latin America does similar work for that continent, colored with somewhat more attention paid to the interaction of soccer and Latin America's tumultuous independence movements and subsequent political upheavals in the twentieth century.  In African Soccerscapes: How a Continent Changed the World Game, Peter Alegi also takes a continental approach, but thoughtfully traces players through the post-colonial interdependencies of African socioeconomic development and big-business European sport.

Simon Critchley in What We Think About When We Think About Soccer and Tamir Bar-On in The World Through Soccer: The Cultural Impact of a Global Sport both endeavor to make the social sciences of sport palatable for average people such as me.  Perhaps neither rises to the gold standard of David Goldblatt or Franklin Foer, but both books are rewarding, congenial reads and make worthy contributions to the literature.  Bar-On's is the more academically rigorous, but Critchley made philosophy fun for my freshman fluency.

My unexpected favorite of these books in the cultural studies vein was The Away Game: The Epic Search for Soccer's Next Superstars.  Sebastian Abbot takes the reader inside the world of the football talent scout and training camps, especially the lives of young African players thrust against the high stakes of the sport business in Europe and the Middle East.  I didn't know how much I didn't know, and the reality of this under-acknowledged netherworld is unsettling.  The painful truth is that the contemporary colonialist harvest of African talent is hideous, and, yet, it can't so wholly and easily be written off as exploitation.  It's complicated.

Books About Free Speech

I read many books about free speech, and I've loosely divided them into three categories here.  The broadest ranging works in this "general" set are Timothy Garton Ash's Free Speech: Ten Principles for a Connected World, Lee Bollinger and Geoffrey Stone's The Free Speech Century, and Floyd Abrams's The Soul of the First Amendment.  Ash's book is described by a reviewer as "encyclopedic."  It is; it's otherwise difficult to categorize and difficult for me to grasp the scope of his knowledge and insight.  With a trans-Atlantic perspective, he grapples with the adaptation of free speech norms to our globalized world.  The Bollinger-Stone collection is at times interesting.  One might ought pick and choose from the contents; it would serve best as a course-supplement reader.  The Abrams book is a paean to free speech, not terribly original but eminently quotable.

Samantha Barbas's Newsworthy, Eric Robinson's Reckless Disregard, and Jeff Kosseff's Twenty-Six Words are legal biographies, respectively of Time, Inc. v. Hill (U.S. 1967) (false light privacy tort), St. Amant v. Thompson (U.S. 1968) ("actual malice" as recklessness "plus"), and Communications Decency Act section 230 (1996) (ISP immunity).  Each is a solid legal history with important contemporary implications.  Robert McWhirter offers a well organized and beautifully illustrated history of the First Amendment, appropriate to scholars of all ages, in The First Amendment: An Illustrated History.

The unexpected best of this set was Mark Tushnet, Alan Chen, and Joseph Blocher's Free Speech Beyond Words: The Surprising Reach of the First Amendment.  I had not expected to be so captivated by this work that dares to investigate a question typically glossed over: why, and to what extent, should non-speech, such as art and conduct, be protected by the legal freedom of speech.  This interdisciplinary analysis unpacks a problem that runs as deep as the very nature of the human being as a social animal.

Books About Hate Speech and Free Speech on Campus

This second set of free speech books I classify as about campus speech, though the books about hate speech plainly have broader application.  A range of perspectives is to be found here.  I am persuaded to the more absolutist view of Nadine Strossen, who has capably maintained and defended a consistent position over decades, even as academia and neo-liberal thought have left her increasingly out in the cold.  She sticks to her guns in Hate: Why We Should Resist It with Free Speech, Not Censorship.  Anthony Lewis's book in the same vein is disappointing.  I'm a big fan of Lewis's insightful Make No Law (1991), the seminal biography of New York Times v. Sullivan (U.S. 1964).  Unlike that book, this rather facile treatment, Freedom from the Thought That We Hate: A Biography of the First Amendment, could have been written by a research assistant.  

In Speak Freely: Why Universities Must Defend Free Speech, Keith Whittington builds the best possible case for universities to care about free speech.  I fear, however, that he gives today's university too much credit for not already being overrun and ruled by bean counters.  Sigal Ben-Porath has the most academic offering of these with her Free Speech on Campus.  But I was frustrated by her refusal to take a firm position consistent with the title of the book, free speech, as if she were afraid of tarnishing left-wing bona fides for failure of sufficient sensitivity.  Finally, the entertaining Mick Hume, a hardened alum of the U.K. newsroom, thinks about trigger warnings what Lou Grant would have thought about them, and he isn't afraid to tell you about it in Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?  Spoiler alert: yes.

Other Speech Reads

This last set of free speech books I'm calling "free speech-related."  David Rieff's In Praise of Forgetting: Historical Memories and Its Ironies is one of the most memorable books of my summer.  I read it because I am endlessly intrigued by the right-to-be-forgotten issue and the problem of cultural memory emphasized by institutions such as the stunning Museum of Memory and Human Rights in Santiago, Chile.  Rieff turned upside down and shook an interrogation out of everything I thought I knew about the subject, leaving me with a highly uncomfortable uncertainty about what we should remember as a global human society, and whether we're anyway invariably doomed to forget all the right stuff.  I also picked up (used) Carol Fichtelman's Right to be Forgotten: Legal Research Guide.  It's essentially a bibliography and good for its 2018 publication date, but already in 2020, at about $15, I overpaid.  I'm not sure why WS Hein decided to bind and sell what should be a free online resource.

Adcreep: The Case Against Modern Marketing is a book I picked up at a Law and Society conference a couple of years back.  I'm interested in the implications for commercial speech, and Mark Bartholomew amply demonstrates the how and why of something we're all instinctively aware of: that we as individual consumers are hopelessly outmatched in today's sophisticated commercial marketplace of ideas.  Finally, I read through an unusual item that's been on my to-do list for a while: John Greenewald Jr.'s Beyond UFO Secrecy.  Wait wait, before you come to confiscate my tin foil hat: I read this book because of its acclaim in the Freedom of Information Act (FOIA) community.  Much of the book's leaves are dedicated to the reproduction of produced government documents blackened with redactions, which is fun and interesting for the FOIA enthusiast.  You will get your ink's worth and your conspiracy suspicions stoked.

Other Reads

Tom Wolfe achieves his usual excellence in The Kingdom of Speech, which compelled me to break my blog hiatus in late summer.  The Curve: A Novel, about life at the "Manhattan Law School," by Jeremy Blackman and Cameron Stracher, was a delightful self-indulgence in fiction, though if you've ever worked in academics, it'll have you recollecting the truths that are stranger than....  In contrast, Kent Newmyer, The Treason Trial of Aaron Burr is hardcore nonfiction, if excellent supplemental reading for the Hamilton devotee: a biography of one of the most important legal cases in U.S. history that somehow usually manages only the scarcest mention in constitutional legal studies.  Equally serious about its social science, Dancing Bears: True Stories of People Nostalgic for Life Under Tyranny tells both the nonfiction history of said bears and the story of their masters, the latter amid a psychoanalysis of dark reaches in the collective human mental condition.  More than once a Polish friend has recommended Witold Szabłowski's book when I struggled to understand something about eastern European thinking.  And ... yeah, I see it now.  Con Job: How Democrats Gave Us Crime ... I know will seem an odd pick for those who know me; I don't usually take my partisanship without at least a teaspoon of Splenda.  I admit to interest in how Crystal Wright, self-described "Conservative Black Chick" came to be who she is.  As I suspected, disillusionment is not a partisan affliction in America, and we ignore it at our peril.

Most memorable of this set was Mikey Walsh's haunting Gypsy Boy: My Secret Life in the World of the Romany Gypsies.  It had been on my to-do list for years, and I never quite felt up to the heartrending drama.  It's not unlike Hillbilly Elegy.  Walsh evinces a grudging appreciation of his Romany heritage and teaches the reader a great deal about its proud traditions, alongside its shames.  The journey was at times painful, but overall enriching.

I only got about halfway through my summer reading to-do list, so more books await.  For now, though, I need to get back to figuring out how to teach 1L Torts online.  Happy reading.

Linguists' famous feud evidences defamatory power of 'racist' charge

As I've written and spoken about in the past, in the 20-aughts, I was an unwilling combatant, enveloped collaterally, in "the Race Wars" at the University of Arkansas at Little Rock (epilog on my part).  If you've never heard of the Race Wars, you're to be forgiven.  It happened in American flyover country, where nothing in academia matters.  Not like when something happens at UCLA, and we get all vexed about it, like it's the first time, because now it's happened to someone important.  Nevertheless, my experience was life-altering for me.  And as often happens in the course of life's affection for irony, trauma leaves knowledge, wisdom, and even enlightenment in its wake.

One thing the Race Wars did was turn me 180 degrees into a plaintiff's advocate for defamation and privacy torts, even while vigorously maintaining my bona fides as a defender of the First Amendment and freedoms of expression and information.  Oddly enough, as a lawyer in the 1990s, I had once researched, for a case, the question of whether, or to what extent, an accusation of "racist" is capable of defamatory meaning.  I had concluded then, nearly never, even if uttered upon a false factual predicate.  And I was untroubled by that conclusion, because it fit with my then-staunch allegiance to free speech near-absolutism.  When, a decade later, the R-word was weaponized against me—falsely, unless one is speaking systemically, without reference to individual culpability, but that wasn't a thing until recently—I reassessed my analysis.

Yet my research showed, still, a decade ago, that it would be exceedingly difficult, impossible in many jurisdictions, to eke a successful defamation claim out of "racist," even when an accuser is signaling, by wink and nod, a false factual basis for the charge.  Common law evolution is slow, and precedents had mounted upon the conclusion that "racist" is a matter of opinion only, incorporating no assertion of fact, and thus incapable, as a matter of law, of lowering one's estimation in the eyes of the community.  Charged with a false accusation that threatened to end my career, that conclusion felt wrong.  If one were expected to resign one's job upon the mere fact of an accusation, regardless of its veracity, and regardless of any defense—I was asked to—then that seemed to me a sufficiently horrific charge to fit the bill for defamation.

In the years since, I have seen the same dynamic play out in cases around the country, to other people, in academia, employment, politics, and other contexts, repeatedly reinvigorating that nagging question, whether "racist" is merely an expression of opinion, or can carry defamatory meaning.  So it was with great interest, while on involuntary summer/pandemic hiatus from UMass Law, catching up with my reading, that I came upon a little story about the accusation "racist" in a Tom Wolfe book.  I'm breaking hiatus momentarily to share this story with you.

Tom Wolfe's Take on 'Everett v. Chomsky'

I just read Tom Wolfe's Kingdom of Speech (2016), about the origin of language, anthropologically speaking. Wolfe references a brilliant book I read some years ago, Don't Sleep, There Are Snakes (2008), by Daniel Everett, about his language work (and much more) with the isolated Pirahã people in Brazil. What I didn't know was that Everett's book was one important salvo in a vast intellectual war, in anthropology circles, between Everett, and his supporters, and Noam Chomsky, and his acolytes, over Chomsky's theory of "universal grammar" (UG).  (I'm not going into detail on the theories here, because that's not my purpose.)  Everett's 2008 book pretty well laid out UG.

What Wolfe explained in Kingdom of Speech is that Chomsky's people were like a (socialist, but, like, really, socialist) cult; they had been merciless in defending UG against advancing science showing UG to be garbage (I generalize). They would go after scientists to undermine their work and in that way kept UG around as a dominant theory of language development for decades, despite what, we see clearly now, was a dearth of evidence. UG was less science and more belief system, or academic cult of personality, built around Chomsky.

Among the unusual features of the Pirahã language is a lack of verb tense, as well as other treatments of time and relativity (especially the omission of something called "recursion"; again, not going into it here) that make communication with us, speakers of the world's modern languages, very difficult. One could conclude that the Pirahã are not very smart, because they don't communicate the way we do. That's mistaken; it's apples and oranges. But it's difficult to perceive Pirahã intellect until one masters the language, and Everett was the first outsider who ever did, only after years of study (and he is a savant-level quick study).

So here's the pertinent part. Everett was burgeoningly famous for his research on the ground in Brazil. Chomsky hated field work in general and hated Everett in particular, whose research was exploding UG. So, in 2007, Chomsky's side engineered this, according to Wolfe:

"Everett was in the United States teaching at Illinois State University when he got a call from a canary with a PhD informing him that a Brazilian government agency, FUNAI, the Portuguese acronym for the National Indian Foundation, was denying him permission to return to the Pirahã ... on the grounds that what he had written about them was ... racist. He was dumbfounded." (Wolfe's ellipses and emphasis.)

Wolfe further explained:

"Everett expressed nothing but admiration for the Pirahã. But by this time, even giving the vaguest hint that you looked upon some—er—indigenous people as stone simple was no longer elitist. The word, by 2007, was 'racist.' And racist had become hard tar to remove.

"Racist ... out of that came the modern equivalent of the Roman Inquisition's declaring Galileo 'vehemently suspect of heresy' and placing him under house arrest for the last eight years of his life, making it impossible for him to continue his study of the universe. But the Inquisition was at least wide open about what it was doing. In Everett's case, putting an end to his work was a clandestine operation."

It turns out that Don't Sleep, There are Snakes, in 2008, was Everett's rejoinder to this attack. The book was wildly popular, exceeding even the bounds of scholarly readership (thus reaching me), and hammered the nails to shut UG's coffin.

Though things worked out all right for Everett, Wolfe's story evidences, as if more evidence were needed, the defamatory potential of that R-word charge—even at a time when I was being told to let it go, that "words [could] never hurt me."

Incidentally, and strangely collaterally irrelevantly, Wolfe and I both are graduates of Washington and Lee University. As I just read in parody,"Washington and Lee University votes to remove offensive name from school's title. Will now simply be known as 'University.'"