Thursday, January 29, 2009

W&M Up Against FIRE-ing Squad

This post was first published yesterday on the W&M Law American Constitution Society blog:

The nation's second-oldest college, which prides itself on having educated some of the most important Founding Fathers, has been criticized for undermining the most fundamental right in the Constitution: the freedom of expression. FIRE, the Foundation for Individual Rights in Education, has labeled William & Mary a "red-light" school, calling out the College for having one or more policies that "clearly and substantially restricts the freedom of speech of its students."

The Flat Hat reported the story Tuesday on its web site. As part of its free-speech warning system, FIRE, a 10-year-old organization, sent a letter to President (and former law school dean) Taylor Reveley. In the Flat Hat article, Reveley expressed his surprise at the school's labeling, saying that he doesn't think W&M is "stifling free speech."

William & Mary is by no means the only target of FIRE's mailing. The University of Virginia, Virginia Tech, and George Mason all received similar letters. (See the entire list here.)

It is worth noting, though, that the Flat Hat chose to highlight the free speech issue less than one year after former W&M President Gene Nichol allowed a performance, albeit a censored one, by the Sex Workers' Art Show. There is no need to rehash the whole controversy here; a section of Nichol's Wikipedia article and a search for "sex workers" on the Flat Hat's web site will suffice. Although other reasons were offered when the Board of Visitors decided to allow Nichol's contract to expire, prompting his sudden resignation last February, many cited Nichols's proclivity for bringing First Amendment issues front and center (see, e.g., the Wren Cross and the Sex Workers' Art Show). This pro-First Amendment attitude—or was it actually a gusto for front-page attention?—certainly wasn't welcomed by alumni.

Nichol aside, FIRE cites vagueness in the College's general harassment policy and Student Handbook policy on student posters, banners, and signs as reasons for the "red-light" label. The poster policy reads: "All signs, posters, and banners must conform to acceptable community standards and to any applicable laws such as permissible wording by the Alcohol Beverage Control Commission" (emphasis added). Those who have taken Professor Van Alstyne's First Amendment class can tell you that defining community standards is a bitch. For example, "Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 235 (2002). Imagine taping such a picture on the walls of an academic building at W&M, or even a residence hall. But what if a law student doing a special project on First Amendment issues wanted to use such a picture? What about an undergrad journalism student with similar motives? Can an academe be part of a different community at the same college?

Such speech codes have a downside, as at least one Virginia scholar has noted. Those who violate the codes (or allow them to be violated) may become glorified as martyrs for the Free Speech cause. "[T]here is a genuine danger that speech codes may not simply fall short of a laudable goal but in fact may even undermine that goal." Robert M. O'Neil, Free Speech in the College Community 13 (Indiana Univ. Press 1997).

So what is at stake for W&M? Do prospective students consider Free Speech issues when they weigh their choices of undergraduate institutions? It seems unlikely. At the very least, however, an institution that prides itself on educating the Founding Fathers should consider restraint when it comes to censoring free speech on campus. If there's a college community where all kinds of free expression should be welcomed, this is it.

Wednesday, January 21, 2009

Barack's Inauguration

Versions of this op-ed were published in the West Branch Times and the Marshall-Wythe Press (print only).

WASHINGTON—As Barack Hussein Obama II took the oath of office as the nation’s 44th president, becoming the first African-American to lead the free world, more than a million people gathered on the National Mall to experience the ground-breaking moment.

Fewer than 250,000 of those people had tickets to the Inauguration and stood within a half-mile of the Capitol as the swearing-in took place. Thanks to the Office of Senator Tom Harkin, I was fortunate enough to be one of them.

From where I stood in the Silver section, accompanied by two friends from Iowa, I could see the stage where Chief Justice John Roberts Jr. administered the oath to Obama, but I could not see the faces of the two young leaders, the first men born after 1950 to hold their respective positions. We, the crowd, stood just beyond the Capitol Reflecting Pool—around which some people had camped Monday night in subfreezing temperatures to secure their spots—past the Washington Monument and all the way to the Lincoln Memorial, where Martin Luther King Jr. had delivered his “I Have a Dream” speech. I could not help but notice the symbolism, that it took this event, the swearing-in of a black president, to draw a crowd so large that the marble Abe, who delivered us from slavery, could bear witness.

My friend Kristy, who works in Washington, her friend Mary and I departed Kristy’s house in Capitol Hill at 7:30 a.m. The night before, we had debated whether to leave for the Mall at 7 a.m. or 8 a.m., because the gates opened at 8 a.m. and we knew most people would have a tough time commuting into the city. Once we turned on the news at 7 a.m., we recognized our folly: people had boarded the trains from all parts of Maryland, northern Virginia and D.C. at 4 a.m. Already, the Metro parking lots were full and soon the Mall would be, too.

I was immediately struck by the diversity of the crowd, and I could not help but feel the energy of the day. It was cold—about 30 degrees with a brisk north wind, creating a demand for hand and foot warmers that was filled with a steady supply from street vendors. “Just five dollars!” they shouted. As we navigated the hordes of people to find our designated line, both the urgency of the day and the temperature of the air pushed us all together—black, brown, yellow, red and white, just as Reverend Joseph Lowery said in the benediction.

Most of us lost cell service in the morning, and the day was all the better for it. One woman asked a traffic cop, “What street is this?” “That’s Constitution,” he replied, “and that’s Independence.” Already flustered at 8 a.m., she asked him, “Is there a less crowded way?” The cop just laughed and shook his head, and so did we. Later, a woman who described herself as “vertically challenged” held a digital camera high above her head to take pictures, then glanced at them in the camera’s display to see what was ahead (more people). A tall man, probably about 6-foot-8, offered his own assessment. “I think I see Reverend Wright!” he exclaimed, and about 100 people burst into laughter.

While standing in line for the Silver Gate, I had one of those Iowan moments, the kind where you strike up a conversation with a total stranger until you find your common ground. I noticed a man’s stocking hat, black with white piano keys around the rim. I told the man that until that day I thought my dad possessed the only such hat in the world, and the man responded that he had thought the same of his own. He said that it was quite a remarkable hat—wearing it, he had run a marathon, been filmed in a movie, and now attended Barack Obama’s Inauguration. His friend, Kevin, noticed my less significant Hawkeyes hat, and asked if I knew anyone from the Cedar Rapids area. I told him my two brothers live there, and that I graduated from Cornell College. He asked if I knew his aunt, who's a professor at Cornell. I told him that she had taught me Spanish 205 when I was a college sophomore. Kevin and I laughed, and his friend took our picture. “It was all because of the piano hat,” he said.

Once we got to the Mall, around 9:45 a.m., we took our spots about 100 yards from a Jumbotron with closed captioning and speakers, without which we would not have seen or heard what was happening. As the dignitaries arrived, the giant screen displayed them and the crowd reacted accordingly. I chuckled as a largely left-leaning crowd (OK, including me) booed a black man (Clarence Thomas), a pastor (Rick Warren) and a man in a wheelchair (Dick Cheney, who had hurt his back the previous day moving boxes). During Warren’s invocation, more than a few people turned their back to him; I saw two such people holding upside-down triangles of pink cloth, symbols of gay acceptance once used to identify homosexuals in Nazi concentration camps. Still, the biggest boos were reserved for Joe Lieberman, the former Democrat who endorsed Obama’s opponent and spoke at the Republican National Convention. Apparently Obama’s supporters have forgiven John McCain, because the crowd remained mostly silent for him. There were big cheers for Obama’s endorsers: Oprah, Colin Powell and Ted Kennedy.

As Barack and Michelle took the Capitol stage, the crowd alternated chants of “Yes we can!” and “O-ba-ma!” The Inaugural speech was well received, and most people left the Mall when the new president finished, even if there was more to the official program.

As we waited to exit, though, it seemed there was one bit of business remaining. A short man in an orange coat informed us of an Inaugural tradition: after the event, the outgoing president would take off from the Capitol in a helicopter. In the Jumbotron, I saw the propellors start. When George W. Bush had come to the stage for Obama’s speech, many in the crowd had sung, “Na na na na, hey, hey, hey, good-bye,” and we wondered aloud if the 43rd president could hear them. As the helicopter rose into the sky, the people cheered and one shouted, “Good riddance!” The man in the orange coat gave the departing president a one-fingered salute. A middle-aged black man standing with his teenage son turned to me and said, “In all my life, I’ve never seen anything like it.”

(Click here for photos of my trip to the Inauguration.)

Tuesday, January 13, 2009

Semester No. 5

It hardly seems possible that law school is half over for me, but it surely is. William & Mary marks the occasion for its 2Ls this Thursday with a "Half-Way Through BBQ."

I arrived back in Williamsburg on Thursday night, having spent three relaxing weeks in Iowa (see picture, from Pikes Peak State Park). Much like many of my classmates, I tried to achieve two main goals: spend as much time with family and friends as I could, and spend as little money as I could.

My class schedule for this semester is settled, after I managed to get admitted into one of my classes from the wait list. Here's my schedule, which is full of interesting and mostly criminal law classes:
  • International Criminal Law, M-W, 10-11:15 a.m. (3 credits)
  • Criminal Procedure I, M-Tu-Th, 11:30 a.m.-12:20 p.m. (3 credits)
  • Post-Conflict Justice and the Rule of Law, M-W, 3:30-4:45 p.m. (3 credits)
  • The Death Penalty, M, 6-7:40 p.m. (2 or 3 credits, depending on length of final paper)
  • Legal Skills (2 credits, pass-fail)
  • Ethics (1 credit)
  • Law Review (1 credit, pass-fail)
I have four classes on Mondays, which should make for a busy start to the week, but I think I seek that out given my history in weekly newspapers, where organized chaos reigns on Monday and Tuesday. Crim Pro I, which covers the Fourth Amendment (searches, seizures, and warrants) and Fifth Amendment (self-incrimination, due process), will help considerably on the Bar exam. Post-Conflict Justice and The Death Penalty are smaller, seminar-type classes—more discussion than lecture, which I prefer. These two classes will require presentations, class participation, and a final paper, rather than the typical final exam. My first Death Penalty presentation will be Jan. 26, with three other group members.

As one might guess from this schedule, I have settled on criminal defense as a "specialty," though law students do not actually declare majors or specialties, as undergraduates do. Our education must prepare us for only two things: passing the Bar exam and getting a job. One hopes that it will also prepare us for a third—being good at that job—but it'll be a long time before I know if I've accomplished that.

As for the immediate tasks, tomorrow I will defend my Law Review Note for 20 minutes against three editors who have reviewed it and made suggestions. Also for journal responsibilities, I'll have two cite checks this semester, and probably some other tasks. Over break, I began work on another semester of research for my fellowship professor, 10 hours per week. Our Legal Skills trials get under way next week, though mine isn't until Feb. 5. My friend Tommy and I will act as prosecutors, which should be fun.

Ethics, which is part of the Legal Skills curriculum, is a two-week class followed by a graded exam. It is all preparation for the Multistate Professional Responsibility Examination (MPRE), which all law students must pass before we can take the Bar. Next week I will likely register for the March 7 MPRE, to get that obstacle out of the way.

As for the truly exciting stuff, I got a ticket to the Inauguration! A giant thanks to Senator Tom Harkin. On Sunday, I will either carpool with a friend or take a passenger train (for about $100) to D.C., where I will do my best to record—with my mind, pen, and camera—what promises to be an amazing, historic scene.