Franks on Little Fascists Everywhere: The National Socialist Playbook of Trump's War on Universities

Mary Anne Franks, George Washington University Law School, is publishing Little Fascists Everywhere: The National Socialist Playbook of Trump's War on Universities in Academic Freedom in the Era of Trump (Lee Bollinger and Geoffrey Stone eds., 2026) (forthcoming). Here is the abstract.

While there is no real predecessor in U.S. history for the breadth and depth of the MAGA movement to destroy higher education—even the McCarthy period pales in comparison in fervor and scope—the Nazification of German universities in the 1920s-30s provides eerie and instructive parallels. The Nazification movement, like the MAGA movement, was organized around unquestioning obedience to a single leader and, correspondingly, hostility toward democratic ideals. The frontline soldiers of Hitler’s war on universities were students resentful of progressive changes to higher education, and the tactics they used to convert German universities into right-wing propaganda factories closely resemble the ones used today to lay siege to American universities: disrupting classrooms, surveilling professors, and monitoring curricula for “undesirable” ideas; countering the “liberal indoctrination” of students with external speakers promoting far-right talking points; purging “degenerate” books from schools and libraries; and organizing watchlists, harassment campaigns, and public exposures of allegedly biased or immoral professors, with the goal of having them removed from their positions. And, in a crucial moment in their push for totalitarian control, the Nazis used the murder of a young, charismatic Party member known for his provocative debate style as a pretext to escalate their ruthless repression of dissent and violence against critics of the regime. Among the urgent and important lessons to be learned from this historical precedent is that totalitarian impulses cannot, in fact, be tamed, and that when universities succumb to them, the rest of society will follow. The preservation of democracy requires the uncompromising rejection of all efforts to interfere with academic freedom and to zealously defend the autonomy of institutions of higher education.

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Dane on Thoughts on the Architecture of Freedom of Religion and Freedom of Speech @perrydane

Perry Dane, Rutgers Law School, Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, in the Notre Dame Law Review Reflection. Here is the abstract.

One goal of this paper is to try to give a holistic account of the structure of freedom of religion and freedom of speech, and their relation to each other. The paper describes a set of important but delicate analytic assumptions and distinctions that have traditionally organized these doctrines. It also tries to explain how those assumptions and distinctions have been coming under increasing pressure, especially dur to our current state of political polarization. The paper then applies those ideas, through the lens of Justice Jackson’s important anthropological insights in West Virginia State Board of Education v. Barnette, to gain a better understanding of the difficulties inherent in cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.

Download the essay from SSRN at the link.

Kerr on Reckless Speech in the Shadow of the Constitution @PKUSTL @SHULawReview

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing Reckless Speech in the Shadow of the Constitution in volume 55 of the Seton Hall Law Review. Here is the abstract.

In this Article, I explore the question of whether and to what extent a seeming threat may be justified by its potential social utility. This past summer, in Counterman v. Colorado, the U.S. Supreme Court held for the first time that the First Amendment requires a threats statute to include at minimum a “recklessness” mental state. This clarification was long overdue. However, Justice Kagan’s majority opinion ignored an important sense of how and why people express themselves, so as to make art. In concurrence, Justice Sotomayor observes how rap (in constitutional terms, “art speech”) can be misinterpreted when a speaker does not share the same cultural background as her audience. I connect this art speech dilemma to an undertheorized aspect of criminal law: how to interpret the normative component of our recklessness mens rea test that evaluates whether an actor took an unjustified risk of causing harm. Missing from Counterman, and the broader literature, is an analysis of whether making provocative art, or attempting to make provocative art, is at all justified by the constitutional status of the speech act and how it may further the underlying value system of the First Amendment. The rub for the First Amendment is that one of its basic purposes is to protect speech that we don’t like very much. This creates a very complicated analysis for the juror who is tasked with resolving whether, in my terms, a superficial threat is not-so-unjustified so that the speaker does not merit punishment. Delegating this kind of loaded question to a lay juror invites legal process concerns, like those framed by constitutional fact doctrine. But, in the end, I suggest that these academic concerns may have negligible consequence. Jurors can still rely on their folk sense of criminal responsibility when making culpability evaluations in the shadow of the Constitution, where speech crimes like true threats reside.

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Zinigrad on Laughing Matters in Courts: Humor's Role in Normalizing Hate Speech @RomanZinigrad @AUP_CCDS

Roman Zinigrad, American University of Paris, has published Laughing Matters in Courts: Humor’s Role in Normalizing Hate Speech in Alternatives (complete citation not yet available). Here is the abstract.

Humor is a form of speech capable of boosting the political value of a speech’s content or even reversing its meaning. Courts acknowledge these qualities by considering that an expression may enjoy an elevated level of free speech protection against government sanctions or private suits if it is formulated in a humorous way. This article spotlights another key attribute of humor, that is perhaps more consequential for the socio-political impact of an expression but that nonetheless does not seem to be invoked in free speech litigation: its power to increase the exposure of the speech. A humorous presentation of an idea offers its audience an entertaining form that is desirable to consume independently of the message it conveys. It lowers the costs of processing irrelevant or objectionable content and so bears the potential of catching the attention of those who would not otherwise be exposed to it. I argue that the capacity of humor to “raise the volume” of speech must be accounted for in the balancing formulas of constitutional and international free speech litigation. To underline the importance of this factor, I focus on cases of hate speech, a category where humor plays a decisive role in the outreach to audiences that do not always share the prejudice or intolerance of the speaker. This article analyzes the case law of the European Court of Human Rights (ECtHR) and of French courts as an example of the general disregard of courts for humor’s amplification of hate speech. The far-reaching damage potential of this disregard is demonstrated on the case of Dieudonné, a notorious French antisemitic comic who has masterfully exploited humor to expose large audiences to hateful content.

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Satta on Orwell's Conception of Free Speech @mark_satta @waynestate

Mark Satta, Wayne State University, is publishing What Was Orwell's Conception of Free Speech? in George Orwell Studies. Here is the abstract.

Orwell’s views on the nature of free speech are significantly more complex than is often recognised. This paper examines what he had to say about freedom of speech and intellectual freedom. It seeks to provide a philosophical analysis of his understanding and use of these concepts and to address some apparent tensions in his thought. In so doing, the paper identifies five dominant aspects of Orwell’s account of free speech. He viewed free speech as closely related to intellectual freedom, which he highly valued; he treated free speech as primarily about the ability to say what one believes to be true; he thought that both government and various kinds of private actors posed serious threats to free speech; he believed that free speech required social safeguards, in addition to legal protection; and he recognised that free speech was a right with limits. He wrote little about the freedom of speech for liars. The paper concludes with the observation that he, therefore, left us with a number of crucial questions to discuss and think about for ourselves.

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Mercer and Black on Inspired Filth: Working Blue in Vaudeville America @UTKLaw @UMemLRev @UBSchoolofLaw

William Davenport Mercer, University of Tennessee, Knoxville, Department of History; College of Law, and Joel Black, University at Buffalo Law School, are publishing Inspired Filth: Working Blue in Vaudeville America in volume 53 of the University of Memphis Law Review. Here is the abstract.

The common law long held that words could be punished if their utterance might cause a breach of the peace. This article thus examines a seemingly simple question: When did American law transform this long-standing rule as it pertained to vulgar, filthy, or “blue,” words and begin to consider the simple utterance of those words as criminal actions in and of themselves? To answer that question, we looked to stand-up comedy and discovered a tradition of regulating filthy words that reached back to the post-Civil War era. There, the regulation of words as obscene coincided with the emergence of sanitized entertainment spaces, epitomized by vaudeville and the increased presence of women and children in public spaces. On these stages “blue” words were illicit; resistance from performers such as Sophie Tucker and Russell Hunting would only confirm the prevalence of this legal regulation. These performers and their regulation invite us to observe a post-war legal transition that was not just about citizenship and individual rights and to recognize that filthy words also underpinned a new legal order. A century before George Carlin, Richard Pryor, and Lenny Bruce famously pushed the boundaries of comic expression, “blue” language stood at the center of efforts to separate ordinary people from their words; the legal protections for speech were made contingent on their capacity to protect, and even generate, the profits of owners, managers, and investors. This post-war transformation of filthy words from common law to statute reminds us that the right to speak has long been subject to an economic hierarchy in which the interests of the wealthy are paramount. As vaudeville reveals, in modern America access to this right has been strongest when words reinforced this hierarchy and weakest when they threatened it.

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Acevedo on Law's Gaze @UALawSchool

John Acevedo,  University of Alabama School of Law, has published Law's Gaze as University of Alabam Legal Studies Research Paper No. 3694579. Here is the abstract.

When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances the court looks upon pornographic materials as the object upon which the court gazes, but in reality the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images. Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.

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Toussaint on Blackness as Fighting Words @EtienneT_Esq

Etienne Toussaint, UDC School of Law, is publishing Blackness as Fighting Words at 106 Va. L. Rev. Online (2020). Here is the abstract.

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the era of COVID-19. What does the Trump administration’s militarized response to BLM protests mean in a world mutilated by the scars of racial oppression, a wound laid bare by America’s racially biased, aggressive, and supervisory culture of policing? In response, much in the way Cheryl Harris revealed Whiteness as Property, this Essay suggests and defends Black identity itself, or Blackness – whether articulated by the pure speech of racial justice activists who affirm Black humanity, or embodied by the symbolic speech of Black bodies assembled in collective dissent in the public square – as “fighting words” in the consciousness of America, a type of public speech unprotected by the Constitution. The very utterance of the phrase “Black Lives Matter” tends to incite imminent violence and unbridled rage from police in city streets across America. Discussions of “Black Lives Matter” by pundits conjure images of subversion, disorder, and looting, the racialized narratives of social unrest commonly portrayed by the media. Yet, the words “Black Lives Matter” and the peaceful assembly of Black protestors also encapsulate the fire of righteous indignation burning in the hearts of minoritized citizens. This dynamic reflects unresolved tensions in the First Amendment’s treatment of race relations in America. Even more, it exposes the role of policing in smothering the Constitutional rights of Black and Brown citizens. This Essay provides three contributions to the ongoing discourse on policing in the United States. First, it reveals how unresolved racial tensions in the First Amendment – focusing specifically on ambiguities in the fighting words doctrine – perpetuate the racially biased, aggressive, and supervisory culture of American policing. Second, it analyzes how such unresolved racial tensions cast a dark shadow over the liberty of Black and Brown citizens who experience racism at the hands of police officers, yet avoid acts of protest for fear of bodily harm or arrest. Third, it illuminates the embeddedness of racism in American policing culture, more generally; a culture that not only constructs and reconstitutes the racial social order, but also degrades the dignity of Black and Brown citizens. Collectively, these insights lend support toward demands for police abolition from BLM activists. As this Essay concludes, until we as a nation wrestle with the unresolved racial subtext of modern policing – a racist culture woven into law that not only silences the legitimate protests of minoritized citizens in violation of their First Amendment rights, but also rationalizes callous violence at the hands of law enforcement – Black America will remain a peril to the veil of white supremacy that looms over the American constitutional order.

The full text is not available from SSRN.

Carpenter on Free Speech and Gay Rights @SMULawSchool

Dale Carpenter, Southern Methodist University School of Law, has published Born in Dissent: Free Speech and Gay Rights at 72 SMU Law Review 375 (2019). Here is the abstract.

It is no stretch to say that Justice Oliver Wendell Holmes created the modern First Amendment a hundred years ago in his dissent in Schenck v. United States. It is equally true that the First Amendment created gay America. For advocates of gay legal and social equality, there has been no more reliable and important constitutional text. The freedoms it guarantees protected gay cultural and political institutions from state regulation designed to impose a contrary vision of the good life. Gay organizations, clubs, bars, politicians, journals, newspapers, radio programs, television shows, web sites—all of these—would have been swept away in the absence of a strong and particularly libertarian First Amendment. It shielded gay political efforts when most of the country thought homosexuals were not just immoral, but also sick, dangerous, and criminal. This essay tells the story of the Chicago-based Society of Human Rights, the very first gay political organization in the United States, which was founded by Henry Gerber in 1924—five years after Schenck, but before the full meaning of the dissent was accepted First Amendment doctrine. The police quickly shut down the group and arrested its members. Justice Holmes himself never met Gerber. He would have found the idea of a gay rights organization incomprehensible, something more akin to the bizarre sex cult Chicago police thought they had discovered rather than the noble experiment Gerber thought he was launching. But if it’s true that the best test of truth is the power of the thought to get itself accepted in the competition of the market, the idea of freedom and equality for LGBT people has attained the status of Holmesian truth.

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Bloom on The Lessons of 1919 @SMULawReview

Lackland Bloom, Southern Methodist University School of Law, has published The Lessons of 1919 at 72 SMU Law Review 361 (2019). Here is the abstract.

One hundred years ago, the Supreme Court embarked on its first serious consideration of the First Amendment’s guarantee of freedom of speech. In 1919, the Court upheld four federal criminal convictions over First Amendment defenses. Three of the majority opinions were written by Justice Holmes. In the fourth, he offered a classic dissent. Two of the cases, Frohwerk v. United States and Debs v. United States, are of middling significance. The other two, Schenck v. United States and Abrams v. United States, are iconic. From these cases have sprung an expansive and complex jurisprudence of free speech. The author elaborates on these historical cases, and their significance to freedom of speech doctrine and jurisdiction.

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Kahn on Mask Bans as Expressions of Memory Politics in the United States

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published Mask Bans As Expressions of Memory Politics in the United States. Here is the abstract.

Mask laws have a lengthy history in the United States, one primarily, but not exclusively tied up with the Ku Klux Klan. They also are an instance of memory politics. In particular, mask bans complicate Nikolay Koposov’s distinction between narrow, self-centered memory politics (society casting itself as a victim), and broad, universalistic memory politics (society recognizing its past crimes). Sometimes, as in the Reconstruction Era, mask bans sent inculpatory or universal messages, albeit weak ones. By the 1920s, the mask bans protected Southern elites and by the 1950s, they partially exculpated the regime of segregation by focusing attention on the Klan as uncouth, cowardly, and unworthy defenders of a “progressive” South still deeply invested in segregation and White supremacy. As such, mask bans show that memory laws are sometimes used as tools of moral distancing, something also on display in recent attempts to anoint Antifa as the new Klan by “unmasking” it.

Download the article from SSRN at the link.

Heinze on An Anti-Liberal Defense of Free Speech @Eric_Heinze

Eric Heinze, Queen Mary University of London, School of Law, is publishing An Anti-Liberal Defense of Free Speech: Foundations of Democracy in the Western Philosophical Canon in the Oxford Handbook of Law and Humanities (forthcoming). Here is the abstract.

Western democracies have determined the extent and limits of free expression largely within rights-based frameworks. As captured by Mill’s classically liberal “harm principle”, expression is permitted except insofar as legislatures and courts deem it to cause some unacceptable harm. Through a review of certain texts foundational for democracy, however, we can identify principles different from the standard liberal principles. Beginning in ancient Athens, we discover that questions of legal legitimacy invariably become questions of civic participation; and civic participation is nothing if not expression. It is no exaggeration to suggest that Western political philosophy altogether begins with that observation: Plato’s Crito presents the West’s first systematic enquiry into the question of legal legitimacy – that is, the question of when the law can bind us through moral rightness, beyond sheer physical coercion. The law binds us precisely to the extent of the freedom we have enjoyed to disagree with it.

Download the essay from SSRN at the link.

Solan on Lies, Deceit, and Bullshit in Law

Lawrence M. Solan, Brooklyn Law School, has published Lies, Deceit, and Bullshit in Law at 56 Duquesne L. Rev. 73 (2018). Here is the abstract.

The law purports to disapprove of dishonesty. But not all species of dishonesty are created equal, and not all contexts are equivalent when it comes to the law’s intolerance of dishonest conduct. This article distinguishes among three types of dishonesty: lies, deceit, and bullshit. Lying is a statement that the speaker projects as true, while believing it to be false. Deceit depends on altering the hearer’s state of mind to believe something the speaker believes to be false, regardless of whether the deceitful statement is true or false. Bullshit, following the work of philosopher Harry Frankfurt, is a statement made without regard to its truth or falsity. The article touches on such areas of law as perjury, making false statements to government agents, fraud, pleading requirements, as well as political speech.

Download the article from SSRN at the link.

Bam on Defending Judicial Speech @UMaineLaw

Dmitry Bam, University of Maine School of Law, has published Seen and Heard: A Defense of Judicial Speech at 11 Liberty U. L. Rev. 765 (2018). Here is the abstract.

Judicial ethics largely prohibits judges from engaging in political activities, including endorsing or opposing candidates for public office. These restrictions on judicial politicking, intended to preserve both the reality and the appearance of judicial integrity, independence, and impartiality, have been in place for decades. Although the Code of Conduct for United States Judges does not apply to the Supreme Court, Supreme Court Justices have long followed the norm that they do not take sides, at least publicly, in partisan political elections. And while elected state judges have some leeway to engage in limited political activities associated with their own candidacy, the Justices of the United States Supreme Court have consistently remained on the sidelines in contested partisan elections. That is why the events of July 2016 were so surprising. With the 2016 presidential election less than four months away, Supreme Court Justice Ruth Bader Ginsburg shocked everyone when she bluntly spoke out against the Republican presidential nominee, and the ultimate winner of the election, Donald Trump. On multiple occasions, she expressed her disdain for Trump in no uncertain terms, calling Trump a "faker," criticizing Trump's failure to release his tax returns, and even joking that her husband would have suggested moving to New Zealand if Trump were to be elected president. Given the ethical rules and the long-standing norms of judicial behavior, these were jarring statements from a sitting Supreme Court Justice. Immediately, there was a near-unanimous outcry against the propriety of Ginsburg's comments, ultimately leading her to apologize. The chorus of critics included both conservative and reliably leftist pundits, media commentators, legal academics, numerous politicians, and Donald Trump himself. It was not just conservatives who rebuked her statements. Despite her near-mythical status in progressive circles, among the critics were some of Justice Ginsburg's biggest supporters. In an election that saw little bipartisan agreement on almost anything, nearly everyone seemed to agree that Justice Ginsburg's statements violated ethical rules and norms. This Article examines whether Ginsburg's many critics were right. I suggest that the norms may be built on a shaky foundation and grounded in long-abandoned myths about the judicial role and judicial decision-making. The traditional restraints on Supreme Court Justices expressing their own strongly-held political views does not further, or at least does not significantly further, any of the important goals generally served by the ethics codes. While Justice Ginsburg's comments, and comments like hers, may change the way the people view the Court and its Justices, their mere utterance causes little damage to the reputation and standing of the federal judiciary generally, or the Supreme Court in particular. In addition, stifling judicial speech disserves the American people by misleading them about judges and judging and concealing potentially important heuristic information from the electorate.

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Henckels on Dishonoring the Australian Flag

Caroline Henckels, Monash University Faculty of Law, is publishing Dishonouring the Australian Flag in volume 44 of the Monash University Law Review (2018). Here is the abstract.

Dishonouring a nation’s flag, usually by way of burning, is a form of protest with provocative symbolism. The selective policing of flag use in Australia reveals much about the culture of flag veneration inculcated in Australian society during since the Howard era. Flag burners have been arrested and prosecuted for the offences of disorderly and offensive behaviour, but those who have employed the flag in support of nationalistic or anti-immigration causes have not attracted such opprobrium. Yet, successive attempts to criminalise flag burning have never resulted in the enactment of flag protection legislation – in part on account of a desire on the part of conservative politicians not to martyrise flag-burners, but also due to the vulnerability of such legislation to legal challenge for incompatibility with the implied freedom of political communication protected by the Constitution. High Court authority suggests that it would be difficult for such legislation to survive Constitutional scrutiny unless the relevant provisions were narrowly tailored to welfare concerns such as public safety or public order, and that an objective of preventing offence cannot be a legitimate reason to suppress political communication.

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Matei on Art on Trial: Freedom of Artistic Expression and the European Court of Human Rights

Andra Matei has published Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights. Here is the abstract.

The way that art is judged in the courtroom shapes the way it is perceived at large and has a direct consequence on how it can be appreciated by the society. Surely, not all art is to everybody's liking. Even the judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In the recent Sinkova v. Ukraine case, a divided Fourth Section of the European Court of Human Rights ruled that the applicant's conviction for an artistic performance featuring the applicant frying eggs over the Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting the memory of soldiers from insult, outweighs the applicants right to free expression. The artistic nature of the applicant's actions is ignored by the ECtHR and in the absence of an explanatory context, the performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on the significance the ECtHR attaches to the protection of artistic expression and the ways in which it regulates the dynamics between artistic freedom and public morals. A cursory review of the relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against the need to protect public morals, or "the rights of others", the ECtHR favors the latter.

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Ted Laros: Literature and the Law in South Africa, 1910-2010 (2017) @Cultuur_OU @rowmanandlittlefield

Ted Laros, Open University of the Netherlands, has published Literature and the Law in South Africa, 1910–2010: The Long Walk to Artistic Freedom (Rowman and Littlefield, 2017). Here from the publisher's website is a description of the book's contents.

In 1994, artistic freedom pertaining inter alia to literature was enshrined in the South African Constitution. Clearly, the establishment of this right was long overdue compared to other nations within the Commonwealth. Indeed, the legal framework and practices regarding the regulation of literature that were introduced following the nation’s transition to a non-racial democracy seemed to form a decisive turning point in the history of South African censorship of literature. This study employs a historical sociological point of view to describe how the nation’s emerging literary field helped pave the way for the constitutional entrenchment of this right in 1994. On the basis of institutional and poetological analyses of all the legal trials concerning literature that were held in South Africa during the period 1910–2010, it describes how the battles fought in and around the courts between literary, judicial and executive elites eventually led to a constitutional exceptio artis for literature. As the South African judiciary displayed an ongoing orientation towards both English and American law in this period, the analyses are firmly placed in the context of developments occurring concurrently in these two legal systems.

 

Adamson on The "Blurred Lines" of Marvin Gaye's "Here, My Dear": Music As a Tortious Act, Divorce Narrative, and First Amendment Totem @seattleulaw

Bryan L. Adamson, Seattle University School of Law, is publishing The 'Blurred Lines' of Marvin Gaye's 'Here, My Dear': Music as a Tortious Act, Divorce Narrative and First Amendment Totem in volume 36 of the Cardozo Arts & Entertainment Law Journal (2018). Here is the abstract.

In 1977, singer Marvin Gaye did an audacious thing: Anna Gordy-Gaye was divorcing him, and asking for $1 million dollars. Despite having a wildly successful career up to that point, Marvin was near financial ruin. His attorney, Curtis Shaw, hit upon an idea: Motown, Marvin’s record label, had given him $305,000 as an advance for his upcoming-but-undeveloped album. Marvin would give Anna the $305,000, and pledge the first $295,000 of the royalties yielded from that recording. Instead of $1 million, Anna agreed to the $600,000, as did Motown’s CEO Berry Gordy, Anna’s brother. The judge wrote up an Order to that effect. Composed, written (with a few exceptions), and vocalized by Marvin alone, he first thought to do “nothing heavy, nothing even good.” Then he changed his mind. The album that resulted? A brilliantly unsettling poison pen to and about Anna, sardonically titled Here, My Dear. Released in December 1978, Here, My Dear laid bare to the world a marriage gone terribly, terribly wrong. From the double album’s jacket illustrations and lyrics, down to the vocal colors and tones Marvin deploys — Anna is portrayed as greedy, vengeful and manipulative. The work was so upsetting to her that Anna publicly threatened to sue Marvin. This Article explores that threat. Here, My Dear is a rich legal document from which to mine the myriad torts Marvin commits against Anna over the course of its seventy three minutes and 10 seconds length. Moreover, given Marvin’s persona as one of the most preeminent celebrity male sex symbols from the 1960s until his death in 1984, Here, My Dear can also be read as a beguiling take on the ways in which masculine perspectives on divorce are constructed and articulated. Here, My Dear is a fascinating artifact also because its analysis impels application of some of the Supreme Court’s seminal constitutional jurisprudence such as New York Times v. Sullivan, Gertz v. Welch and Time v. Firestone. Each, in some form or to some extent, is relevant to the Gaye divorce saga as it raises issues of free speech and artistic expression, who can be considered “media” or a “public figure,” and rights of privacy versus newsworthiness of divorce. Consequently, Here, My Dear serves to illustrate foundational communication and distress torts principles as shaped by First Amendment doctrine.

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Bricker on After the Golden Age: Libel, Caricature, and the Deverbalization of Satire

Andrew Bricker, Ghent University of Belgium, has published After the Golden Age: Libel, Caricature, and the Deverbalization of Satire, at 51 Eighteenth-Century Studies 305 (2018). Here is the abstract.

It is a commonplace of literary history that satire vanishes in the middle of the eighteenth century. It is clear, however, that written and especially visual satire witnessed massive growth in the final decades of the century and throughout the Romantic era. My goal is to explain this simultaneous contraction and expansion of the satiric marketplace. Rather than dying, I argue, satire began to migrate to visual media, and especially caricature, after mid-century. The reason for this migration was the shifting procedural norms of libel law itself. Over the first half of the century, the courts developed procedures for delimiting verbal ambiguity in trials for libel that made the publication of written satire perilous. These same procedures were largely useless, however, in the prosecution of visual materials, which made at best sparing use of words—they were, as I put it, "deverbalized"—and were therefore not subject to the same rulings and interpretive procedures.

You may be able to download the text from Project Muse at the link.

Marber on Bloody Foundation? The Equestrian Statue of Theodore Roosevelt at the American Museum of Natural History

Sinclaire Deverux Marber, London School of Economics, Law Department, has published Bloody Foundation? The Equestrian Statue of Theodore Roosevelt at the American Museum of Natural History. Here is the abstract.

On October 27, 2017, protestors calling themselves the Monument Removal Brigade ("MRB") splashed red paint on the base of an equestrian statue of Theodore Roosevelt outside the American Museum of Natural History in New York ("AMNH" or the "Museum"). The portrait of the twenty-sixth President of the United States is flanked on either side by African and Native American men intended to represent their respective continents. On its anonymous blog, MRB called for the statue's removal and claimed, “[t]he true damage lies with the patriarchy, white supremacy, and settler-colonialism embodied by the statue.” The Museum responded that because the sculpture rests on public land, AMNH does not have the power to remove it. The AMNH protest occurs within a larger national debate about the place of public monuments. That the equestrian statue is situated on museum grounds presents a unique opportunity to foster thoughtful dialogue around this topic. The AMNH today uses science to look forward, but also to interpret the past. Natural history museums have their own dark histories of discriminatory practices; modern investigations should not just be relegated to artifacts, but to institutional histories. Who created this sculpture? What traditions inform the way it represents these three men? Why does the city own it? What did Theodore Roosevelt have to do with the museum? This interdisciplinary article will present the history of a particular statue and proposals for its future as a case study in dealing with controversial monuments.

The full text is not available for download from SSRN.