So I think there’s a good case to be made that the accrediting associations are state actors. And if I’m right about that, then it would be hard for accrediting associations to do what Penn Professor Peter Conn suggests, and de-accredit schools that require faculty to pledge a belief in the literal inerrancy of Scripture.
Due process is flexible, in light of the circumstances. But what kind of meaningful trial could U.S. citizen and terror suspect Anwar Awlaki have received if the government were allowed to kill him first, and try him afterwards? Once you concede Awlaki had a due process interest in his life – and one always has a due process interest in one’s life – then a post-deprivation trial must by definition have failed the due process test. That test never yields a result where the amount of due process owed to the private citizen is zero, both before and after deprivation of the due process interest. That’s why death penalty appeals are so long and tortuous: if you don’t get it right before you execute the defendant, there is no opportunity to correct it.
But if trying a case in highly diverse Jersey City has taught me anything, it’s that those multi-colored young diners sitting in that McDonald’s, swigging (yes) Coke, are really our kids, our heirs and our successors. And our system won’t change much as they come into their inheritance. Nothing to fear.
True, we have always known that the outside of any envelope we place in the mail can be seen. We have always known that the phone company had access to “pen register” information, and that the bits and bytes that make up our e-mails are “known” to the various providers transmitting them. But we also did expect that the keepers of the media would take no interest in our metadata, would in fact be bound by rules of confidentiality, and that they would not only safeguard the contents of the communications, but also, to the extent practical, the fact of the communications too. We certainly didn’t think that the metadata would be analyzed by a government agency.
In a barbaric legal culture, even conscientious lawyers are likely to find themselves acting a lot like barbarians.
There is an overlay of mutual incomprehension in the struggle over the Innocence of Muslims video. But I would submit that both sides still have pretty clear ideas about what is at stake.
Of course, it’s not the State of Michigan itself establishing the threat, but rather the National Collegiate Athletic Association. “The NCAA has strictly limited the role you, as a Michigan Fan, may take with regard to prospects and student-athletes.” So the chill on Mark’s free speech works a bit like the scene we’ve all seen in the movies: the bad guy holds a gun to some terrified child’s head and says to a parent: “Keep your mouth shut or the kid dies.” It makes the parent think twice about exercising free speech rights to call the cops. The only variation here is that here the state actor issuing the warning isn’t the one holding the kid: the (supposedly private) NCAA is holding the kid.
Political Correctness is an antibody that attaches itself to your diseased discourse and protects the American immune system.
We should attend to what other countries do and think – just as they should be looking at us. Nobody’s too dumb to teach or too smart to learn, whatever Justices Thomas and Scalia may say. As antidotes to “exceptionalism,” consider the burqa — and consider Roman Polanski.
It is tempting to view the stories told in [Eric] Boehlert’s two books, one chronicling the failure of the mainstream media to report the news and the other revealing the success of the blogs in doing so, as being parts of the same story. Maybe the mainstream media would not be failing from a business perspective were they not, most of the time, failing from a news-reporting perspective as well. Maybe the blogs would not be succeeding, albeit under their mostly profit-agnostic criteria, were they not beginning to seize the standard of bona fide reporting falling from the grasp of the mainstream media as they tumble lifeless upon the field of economic battle.