Fire Erik Loomis... to Defend Freedom of Expression

I have long joked that Twitter is the greatest engine of self-beclownment ever invented.  Too many people tweet when angry (and perhaps a little drunk), so that if you are kind of an idiot, you will reveal yourself to be one.  Ask Brooks Bayne!  Or for that matter, Anthony Weiner.

So in that vein, University of Rhode Island History Professor Erik Loomis has become a twitter celebrity in the last few days for all the wrong reasons.  Since the massacre in Newtown, Loomis has beclowned himself by saying the following on Twitter, as documented at Popehat:

I was heartbroken in the first 20 mass murders. Now I want Wayne LaPierre's head on a stick.—

Looks like the National Rifle Association has murdered some more children.

You are goddamn right we should politicize this tragedy. F__k the NRA. Wayne LaPierre should be in prison. [Cursing censored by me.]

Wayne LaPierre is a criminal and should be in prison for complicity with murder. 27 counts.—

Can we define NRA membership dues as contributing to a terrorist organization?

Larry Pratt and the group Gun Owners of America are terrorists and should be dealt with as such.

The right-wing intimidation campaign against me for saying the NRA was a terrorist organization continues. Will not succeed.

Dear rightwingers, to be clear, I don't want to see Wayne LaPierre dead. I want to see him in prison for the rest of his life. #nraterrorism

In addition to that, Twitchy catches him saying the following:

I bet terrorist NRA head Wayne LaPierre will sleep well tonight.—

The NRA pushes for policies that make it complicit in mass murders in the US and Mexico. Repeal the 2nd Amendment.—

Another day, another NRA facilitated terrorist attack. This morning at an Alabama hospital. [linking to here.]

Your daily NRA-facilitated terrorism. San Antonio this time. [Linking to the story about the shooting at a San Antonio theater, I discussed here.]

By the way, we are told that this bit about “head on a stick” could not possibly be an actionable threat, because it is a metaphor.  Right, because you can never threaten a person in figurative language.  If a Mafioso says “pay your protection money or you will sleep with the fishes,” these legal geniuses assure us, that is not a threat.

Which is my sarcastic way of pointing out that you can indeed threaten a person with a metaphor.

The real and clear reason, by the way, that this is not an actionable threat is because it was not plainly communicated to Mr. LaPierre nor was it plainly directed at being communicated to him.  What this is, then, at worst, is ruminating about murdering a person, which can be rightfully a concern for law enforcement but it is not a threat.

(Ken at Popehat is also correct to say that it is not a threat if it is not meant seriously, but how does he know that he isn’t serious?  I am sure he doesn’t literally want to put LaPierre’s head on a stick, but I don’t and I won’t speculate about whether Loomis actually wants to kill him.)

Also in a mild correction of Ken, he had only retweeted the following:

First fucker to say the solution is for elementary school teachers to carry guns needs to get beaten to death.
— The Rude Pundit (@rudepundit) December 14, 2012

Now, one should be careful about interpreting a retweet as an endorsement.  Many people retweet things specifically because they don’t endorse it.  For instance, the late Andrew Breitbart delighted in retweeting the particularly unhinged tweets directed at him, as does Michelle Malkin.  And I myself often retweet something when someone says something particularly evil or clueless, to expose them.  But on the other hand, certain retweets do seem like an endorsement.  For instance, when Susan Rice withdrew her name from consideration for Secretary of State, my dark sense of humor took over in this tweet:

Ironically Susan Rice said she felt like she was being attacked by an overwhelming force and despite calls for help, it never came
— Aaron Worthing (@AaronWorthing) December 13, 2012

That was retweeted an astonishing two hundred and twenty five times and counting, and I think it is safe to assume that at least two hundred and twenty four of them was because they agreed with my sentiment.

Loomis retweeting that “beaten to death” comment seems like an endorsement.  This is a person who obviously thinks similarly to him, and his call for violence—serious or not—are similar to Loomis’.  But that is an ambiguity, so rather than argue over whether this retweet does imply endorsement, let’s put that aside for now because truthfully it is not necessary to what I am about to say.

Since Loomis said these things, there are some people who have argued that he should be fired from his university job and there are good people such as Ken in the piece I have cited, Adler over at Volokh, and eight professors posting collectively at Crooked Timber.

Now certainly if Loomis had merely said, “I hate the NRA.”  Or even “the NRA’s policies are dangerous and contributed to Friday’s massacre,” I would agree with my distinguished colleagues and say he should face no retaliation at his job.  I mean, I of all people don’t believe that as a rule people should be fired from their jobs for what they say on their off time.  But they are missing (or in Ken’s case failing to grasp the importance of) the real problem in Loomis’ commentary:

The Problem is Fascism.

You see the real reason why Loomis should be fired—or at the very least investigated for what he said—is that his comments are fascist.  Bear in mind, I define fascism as nothing more than a lack of belief in democracy itself.*

Consider for instance this comment by Loomis:

You are goddamn right we should politicize this tragedy. F__k the NRA. Wayne LaPierre should be in prison. [Cursing censored by me.]

So he believes that LaPierre should be imprisoned for what exactly?  To the best of my knowledge, LaPierre has broken no laws.  All he has done is advocate for a policy—reduced restrictions on gun ownership—that Loomis disagrees with.  Advocacy of the criminalization of opinions you don’t agree with is the very essence of fascism.  He repeats that thought several times:

Wayne LaPierre is a criminal and should be in prison for complicity with murder. 27 counts.—

Dear rightwingers, to be clear, I don't want to see Wayne LaPierre dead. I want to see him in prison for the rest of his life. #nraterrorism

Further he advocates that the NRA and its leaders be treated as terrorists, again for expressing an opinion he doesn’t agree with.

Can we define NRA membership dues as contributing to a terrorist organization?

Larry Pratt and the group Gun Owners of America are terrorists and should be dealt with as such.

The right-wing intimidation campaign against me for saying the NRA was a terrorist organization continues. Will not succeed.

I bet terrorist NRA head Wayne LaPierre will sleep well tonight.— [on the night of the Newtown massacre.]

Our government’s response as a matter of policy to terrorism ranges from freezing funding to criminal prosecution, to harsh interrogation techniques liberals typically call torture, to summarily killing them by drone strike.  And for the record, I don’t have a problem with doing this to actual terrorists, but not merely to people who disagree with you.  Advocating that a group that merely disagrees with you should treated like terrorists is also fascist.

And his repeated depiction of the NRA and its leaders as murderers (and terrorists for that matter) and his calls for violence—serious or not—encourage private violence against these people is troublesome.  The Brownshirts were a private group terrorizing individuals for saying things they didn’t like, and they were instrumental to the rise of fascism.

Now this is not to say that this is incitement within the meaning of the Brandenburg standard (of which I am safely considered an expert) and thus can be criminalized or otherwise prohibited.  But as a history professor wrote, “such language can embolden the crazy[.]”  And who wrote that?  Erik Loomis, when arguing that somehow targets on a map caused the Giffords shooting.  What Loomis has been doing is a tad worse than that.  So, add the charge of hypocrisy to the bill of particulars against this professor.

And even then, ordinarily, this doesn’t justify a person being fired from their job.  Whether a person is a fascist or not, a brownshirt in waiting, is of no rightful concern to his employer if he was a bagger at a grocery store, a garbage man, a lawyer, a businessman, etc.

But he is a professor in a University.  Further, it is a state university.  And that is a problem.

Universities can and do have the right to promote academic freedom, which is just really a gussied up version of what most of us just call Freedom of Expression.  For instance the Supreme Court said in Keyishian v. Board of Regents of Univ. of State of New York:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

My only objection to that argument is the implication that this freedom to inquire is somehow less important everywhere else.  So of course, defenders of Mr. Loomis say, his idiotic and indeed fascist comments are protected as a matter of academic freedom!

That is indeed what Ken seems to say, arguing that Loomis’ comments are anti-speech but still protected speech.

Except not so fast.  You see they are overlooking an important principle:

Academic Freedom Applies to Students, too.

His students have as much of a right to express differing views, to enjoy freedom of inquiry, and so on, as he does.  I mean a professor can say to a student, “I am teaching right now, so kindly shut up.”  That is okay.  Time, place and manner restrictions on student expression are fully justified or else teachers wouldn’t be able to teach.

But, a student should not face discrimination because his views—when expressed at appropriate times—differ from his professor.  This is the ideal in the setting of a private university, but it is mandatory in a public one.  After all, this professor’s actions are the actions of the state and thus academic freedom is not merely some ideal, but a constitutional command under the First Amendment (as incorporated by the Fourteenth).

And bear in mind I am not saying that Loomis is not entitled to believe what he believes, even passionately so.  If he merely came on twitter and said he thought assault weapons should be banned, I wouldn’t be talking about either firing or seriously investigating him due to his words.

But he has gone further than that.  He has advocated prison for those he disagreed with.  He advocated designating political opponents as terrorists, which could bring consequences ranging from the freezing of funds to being killed summarily.  And he has stirred up private violence against those who disagrees with him.

Do you think he can treat his students who disagree with him fairly?

And the Right to Bear Arms is extremely likely to come up in some of the courses he teaches.  According to McCain he teaches “History of the United States to 1877” which covers several relevant topics in which the issue would naturally arise.  The American Revolution, for instance, is almost universally cited by those who are pro-choice about gun ownership as the very reason for the Second Amendment’s existence.  As I have said myself regularly, the founders had just finished rebelling with the use of arms against British rule and were afraid that the new Federal Government was going to be tyrannical over them; it is absurd to suggest that they granted this government the right to take their arms.  Likewise, when talking about the battles of Lexington and Concord a pro-gun-choice student might be tempted to point out that these battles were prompted by British attempts to take away the weapons of the colonists.  When one discusses the ratification of the Constitution, the discussion might turn to Federalist 46 where Madison wrote that

Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.

In essence, Madison was saying, “don’t worry about the new Federal Government becoming a tyranny.  With arms, and state governments to lead the charge, you will be able to overthrow  the Federal Government, if it does become tyrannical.”  One might even think it is strange to argue that the same man who wrote those words would propose a Constitution and a Second Amendment that didn’t protect the Right to Bear Arms.  Indeed, if it was ever shown to be the case that Madison believed the Federal Government could take your guns even after the Second Amendment was ratified, one could rightfully accuse him of obtaining the ratification of our Constitution by fraud.

Indeed as one discusses the ratification of the Constitution and the decision to add the Bill of Rights, you might cite the Anti-Federalists’ argument that without a Bill of Rights specifically guaranteeing items like the Right to Bear Arms, that the courts might read the Constitution as granting all powers to it not specifically denied and decide that the Federal Government can violate precious rights such as Freedom of Expression and the Right to Bear Arms.  One might even cite Patrick Henry asking

Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?

Of course Madison’s answer to that was first to say that adding a Bill of Rights was unnecessary because nothing implied such a construction, and if you included a list of some rights you would imply that all others would be denied.  Eventually Jefferson convinced Madison that it was better to protect some rights than risk the others, and Madison added in the Ninth and Tenth Amendment to his proposed Bill of Rights specifically to rebut the idea that by listing some rights they were implying that all other rights were denied.

But that is tangential.  The point is a student could easily argue that the Second Amendment (and the Bill of Rights in general) was ratified in response to exactly those kinds of arguments from the Anti-Federalists.

If we fast forward away from the founding in the 18^th century to the founding in the 19^th century, when the Civil War Amendments were ratified, (the most relevant amendment, the Fourteenth, was ratified in 1868), the topic might arise again.  Students might point out what I mentioned in my last post that

Likewise, in the American South after the Civil War the KKK and the Red Shirts and like-minded organizations set about making sure black people were disarmed using means that were formally legal and otherwise (the KKK was a terrorist organization, after all).  This was not done for their benefit but so they could be more easily reduced to a state barely distinguishable from slavery—indeed often so they could be literally returned to slavery.

Similarly, those students  might point at the various statements in support of the ratification of the Fifteenth Amendment, which prohibited racial discrimination in the vote, declaring that the right to vote was almost as important as the right to bear arms, as that the right to vote provided a degree of self-defense for the newly freed slaves.  Such students might argue, as the Supreme Court did in McDonald v. City of Chicago, that the Fourteenth Amendment was intended to apply the Second Amendment to the states in part to protect the newly freed slaves.

The point of the last few paragraphs isn’t to demonstrate just how much liberals have to distort history to pretend the Constitution doesn’t protect the Right to Bear Arms, although that is always fun and useful in and of itself.  The point is to point out that in discussing the history of America up until 1877 the Right to Bear Arms is very likely to come up in conversation.  The same can be said for other courses he teachers, such as “Civil War and Reconstruction.”  And if a student brings up the subject and disagrees with his Professor’s anti-gun views, can that student expect to be treated fairly?

Again, this is a guy, Professor Loomis, who said gun supporters should be imprisoned, treated as terrorists (which might be interpreted as endorsing their summary execution) and has whipped up violence against those who are pro-gun-choice.  Even if you call that hyperbole, it doesn’t bode well for the possibility of an open and respectful discussion of gun rights in his class.  If a student expresses a pro-gun-choice view on an exam will that student’s grade be affected by this professor’s unhinged hatred of this position?

When you work for the state you do give up some of your freedom of expression; or more precisely what you say can cast doubt on your fitness for a certain job.  Patrick Frey, a good friend of mine and a Deputy District Attorney, has recently had his Freedom of Expression significantly vindicated (being ably defended by the same Ken at Popehat I am respectfully disagreeing with).  He is free to say a great deal.  But if he should ever write in earnest on his blog, “all black people should die and no white person should be prosecuted for such a ‘murder’” his bosses would have every right to fire him.  Why?  Because in that hypothetical, you would wonder if he would carry out his duties in a racially-neutral fashion as the law requires.  Such a hypothetical expression would call into question his ability to do the job the state has hired him to do, which includes impartially applying the law without regards to race.

Oh, and it is also a lawsuit waiting to happen, and a reasonably just one at that.

Fortunately Patrick has done nothing of the sort and indeed doesn’t think anything of the sort.

Likewise, Professor Loomis’ comments cast serious doubt on whether Loomis can do his job, which includes treating all students equally even if they hold a viewpoint he considers repugnant.  This is a command of the First Amendment and as a state university professor, he is bound to it.  Indeed his comments are a lawsuit waiting to happen.

And that is not the only problem.  Loomis’ comments are so unhinged his conduct creates what we in law call a chilling effect.  The idea is that it is not enough that a person will not face discrimination at the hands of a state actor for having engaged in protected speech, but that person has to feel reasonably certain they will not face that discrimination.  If you are a student in this class, and you have followed this controversy, are you going to feel safe to express your support for the Second Amendment?  It seems reasonable to assume that many students will bite their tongues, for fear of discrimination against their viewpoints.  And that chilling effect is a problem.

I mean, I saw it first hand when I was at Yale Law School.  It will surprise pretty much no one who knows me that when I disagreed with my professors, I let them know.  For instance, when Bush v. Gore, was decided there was a great deal of denunciation in class, complaining that the Supreme Court didn’t follow the law as written, that it let its politics infect the decision. This was by professors who had no trouble with the Supreme Court pulling new rights out of his hindquarters in Miranda v. Arizona and Roe v. Wade and so at some point the hypocrisy got to be too much for me and I said something fairly close to this to critics of the decision:

What exactly are you complaining about?  Even if you accept that they let their biases guide their judgment, that they failed to follow the Constitution as written, you don’t have a problem with that.  This school has been ground zero for the idea that judges should rule according to a vague sense of “justice” rather than the dictates of the law.  This school has supported the idea that if you want a policy badly enough it is okay for a judge to hallucinate it into the constitution and then impose it on the people in violation of democratic principles.  Just who exactly do you think you are fooling?  The Constitution no more guarantees a right to an abortion than it sets up a script cops must say when they arrest someone.  This school has spent the last thirty years undermining the idea that there should be one branch of our government above politics and that they should follow the law as written.  So the worst you can say about the Supreme Court is they did what you wanted them to.

You’re not upset that they didn’t impartially follow the law.  You’re just angry that you lost.

That is not even close to word-for-word, but it is pretty darn close to what I said.  It’s a little more cranky and argumentative than usual for me, but it gives you a taste of how stridently I expressed myself when I disagreed with my professors.

And often other students would come to me after class and say, “I just want to let you know a lot of us support you.”  These would be people who didn’t actually speak up during class and we all knew why: they were afraid they would not get a good grade (which is extra ironic because Yale doesn't even have normal grades) or a glowing recommendation.  And, the irony is that their fears were entirely unfounded; some of the professors I disagreed with the most sharply gave me the highest marks and stellar recommendations.  Yale is overwhelmingly liberal, yes, but they do believe in Academic Freedom.

I mean, after all, they did give us the late Robert Bork.

And to square the circle, those professors made it clear that disagreeing with them would not affect one’s grade or rob them of a recommendation.  They didn’t do a thing to foster that fear.  And yet many students were still afraid to challenge them.  So to some degree a chilling effect cannot be avoided and that is unfortunate.  But Loomis has magnified this a hundred fold.

Accordingly, I respectfully disagree with good people like Adler and Ken at Popehat.  It is often said the right to move my hand ends where your nose begins.  Freedom of speech does not grant to a state actor the right to violate anyone else’s Freedom of Speech.  Accordingly I think he should be fired, or at the very least severely investigated with an eye toward determining if he treats students he disagrees with fairly, because his students have a right to Freedom of Speech, too.

And if you find yourself in his class, look into the laws dealing with recording others.  Protect yourself in case he does behave inappropriately.

Oh as one final coda to this discussion, I will also say he is not exactly helping his case with that kind of rhetoric.

Dear liberals, you will not convince me to give up my guns by acting like violent fascists @michellemalkin @instapundit michellemalkin.com/2012/12/19/the…
— Aaron Worthing (@AaronWorthing) December 20, 2012

I mean don’t you think somewhere LaPierre is saying, “well thank God I have a gun”?  I certainly would be if I were him.

Although, to be fair, liberals are not likely to convince me to turn against the Second Amendment period.  As I have joked, if I didn’t support the Second Amendment before I was being stalked by convicted terrorist Brett Kimberlin, that sure as hell would have done it for me.

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* As Jonah Goldberg correctly notes in his book Liberal Fascism, the term “fascism” does not have an agreed upon definition.  People often define it as “right wing” or “nationalistic” and Goldberg argues that many liberal policies have roots in fascism.  Orwell, of course, correctly said it was mainly used to designate a point of view you don’t like.

But when I use the term, I am informed by the difference between what Bruce Ackerman calls high politics and low politics.  High politics is things like Freedom of Speech, the Right to Vote, whether we are a Democracy, the end of Slavery and so on.  Low politics is the tax rate, how much exactly we will spend on the military, whether they will fill in the pothole in the corner.  The difference between low politics and high is that high politics is about fundamental issues of freedom and democracy and low politics is about what you do once freedom and democracy is established.  High politics is establishing the right to advocate for a certain tax rate.  Low politics is determining what the tax rate will be.

So for me the only useful definition of fascism is tied into that concept.  I don’t care if it is associated with abortion, or nationalism.  The reason why fascism is a bad thing is its tendency to establish a dictatorship and to suppress views they don’t agree with.  So when I call someone a fascist it is for that reason.

Arguably the mere act of advocating gun control is fascist under that definition, but I do not call that alone fascist.  Most people who advocate for gun control do not do this because they hope to see Democracy overthrown.  They do it because they believe it will keep us safer.  So I do not call them fascists.  I suppose if someone says “I want to take away your guns so that I can stage a coup,” I will call that person a fascist, but just calling for gun control doesn’t earn you that title in my book.

Because Orwell is right.  The term fascism is only useful as a pejorative, and it should be reserved for the most dangerous and un-American views.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the Blogger’s Defense Team button on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.