There is a news account here; I have not seen the opinion, so am only going on this account (though it strikes me as plausible, given what I know about the local judiciary). The result is a case study in what is wrong with American defamation law, and helps explain why our media, including our cyber-media, are such cesspools of falsehoods and garbage.
Consider: a student accuses Jon of groping her breasts and buttocks; Jon's behavior is both wrongful and illegal--it is both tortious and criminal. The newspapers, however, report that Jon is accused of "rape," which is defined in most jurisdictions as non-consensual penetration of the vagina or anus of another person, or non-consensual contact between the genitals of one person and the mouth, vagina or anus of another (this is not, however, the precise definition in Illinois, which probably helped the defendants here). Legal definitions aside, everyone knows that being accused of non-consensual groping is not as heinous as being accused of rape. Even the defendants know that, since they revised their original misdescription of the allegations and removed the word "rape"!
So what really explains this outcome? Two things: first, American libel law provides enormous cover for egregious misrepresentations of any topic that might be deemed of "public" interest" (in almost every other Western democracy whose libel law I am familiar with, Ludlow's case against the newspaper would have been a slam dunk); and second, and this is really crucial, the local judges in the Chicago state courts are, I have been told, mostly graduates of non-elite law schools and have contempt for elite academics. Judge Flanagan, who handed down this decision, graduated from John Marshall here in Chicago, a regional school that ranks well behind other very good regional schools in Chicago like Loyola/Chicago, Chicago-Kent and DePaul. I do not know Judge Flanagan, but I am familiar with the general problem. A couple of years ago, I was considering bringing a defamation action that would have to be filed in the local state courts in Chicago (rather than the federal courts), but I was advised by a Chicago lawyer with considerable experience in these matters that the local Chicago judges would view with skepticism and contempt any such lawsuit by a University of Chicago professor. I am, like any experienced lawyer, a legal realist, that is, I know that non-legal factors have a significant influence on outcomes in the court. This is yet another case in point.
I should emphasize, given the general level of insanity surrounding this whole issue, that everything I have written above about Ludlow's lawsuit against the newspapers is correct even if every actual allegation against Ludlow by the student is correct.
UPDATE: I respect the important work philosopher Heidi Lockwood has done to assist victims of sexual assault and sexual harassment, and have benefitted in the past from her knowledge of Title IX. Her intervention on this particular issue is, however, confused and irrelevant. Rape is always a kind of sexual assault, but not all sexual assaults are a kind of rape, and this is true even in jurisdictions that do not use the term "rape" but define sexual assault in terms of degree, with rape always being first-degree (i.e., not all sexual assaults are first-degree sexual assault). The latter is the only issue here, not the former. More to the point, Illinois defines rape as "criminal sexual assault" involving "sexual penetration," the latter defined as follows:
Means any contact, however slight, between the sex organ or anus of one person and an object or the sex organ, mouth, or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including, but not limited to, cunnilingus, fellatio, or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.
There was never an allegation of sexual penetration against Ludlow by the undergraduate student, so there was never an allegation of criminal sexual assault, i.e., rape. Defendant Sun-Times recognized this once contacted by Ludlow's attorney: that is why they revised their headline, removing the word "rape" and replacing it with "sexual assault." In other words, defendant newspaper recognized the meanings were different. Judge Flanagan, according to the Chicago Daily Law Bulletin, found that the "the defamation and false light claim...fail on the basis of the fair-report privilege":
That privilege protects a publisher of defamatory matter when the matter fairly and accurately summarizes statements in public documents or proceedings at official public meetings, such as court documents or hearings.
“There is a fair abridgment of a proceeding where the sting of the defamatory statement in the proceeding is the same as a sting of the defamatory report,” Flanagan wrote. “The hallmark of the privilege is the accuracy of the summary, not the truth or falsity of the information being summarized.”
The only question, in other words, is whether the "sting" of being accused of rape is the same as the "sting" of being accused of sexual assault (not criminal sexual assault). The Sun-Times did not think so, but the Judge did. The most plausible explanation I can think of for so finding is bias against the plaintiff on the part of the judge--a bias consistent with what I have been told by a lawyer with twenty years of experience of litigating defamation cases in Cook County courts (where Judge Flanagan sits). More generally, American libel law tends to err on the side of sacrificing the plaintiff's reputation in the alleged interest of the "public"--the fair-report privilege, as applied in this instance, is an example. That line of law began with New York Times v. Sullivan in 1964, but it was Sullivan's progeny that adopted the foolishly capacious approach to "public figures" and "public interest." (Interestingly, when I ran a poll of law faculty on the 50th anniversary of Sullivan, the vast majority thought Sullivan itself rightly decided, but a majority thought its legacy had not been a good one, which is my own view as well.)
He appeals to anybody who is sincerely concerned about Israel’s safety and security to join him in telling Israelis the truth in plain language. “A real friend does not pick up the bill for an addict’s drugs: he packs the friend off to rehab instead. Today, only those who speak up against Israel’s policies – who denounce the occupation, the blockade, and the war – are the nation’s true friends.” The people who defend Israel’s current course are “betraying the country” by encouraging it on “the path to disaster. A child who has seen his house destroyed, his brother killed, and his father humiliated will not easily forgive.”
It is testimony to the remaining vibrancy of public debate in Israel that Levy can serve as a columnist with the country's most important newspaper; in the U.S., of course, he would long ago been driven to the margins by Abe Foxman, Alan Dershowitz, and the other smear merchants of the Israeli right.
UPDATE: Enoch's reply to Bell has been added at the link, as well as a link to an English version of the document where Prof. Bell does indeed defend the legal permissibility of "gross immoralities," as Prof. Enoch said originally.
An interesting development; hopefully similar efforts will be made in the U.S. to reverse our insane penal policies. (The Committee responsible for the report was Chaired by the distinguished philosopher of criminal law R.A. Duff [Stirling/Minnesota].)
Many readers have sent version of this story about the fraud Zizek. All I have to say is that if it isn't true, then the white supremacist has a strong libel case against those who made the accusation.
UPDATE: Zizek's reply. It's good to know he can express himself clearly and directly when the charge of plagiarism is at issue. (Thanks to Steven Gross for the pointer.)
[H]ere’s the thing about the generation of 10-13 year old boys who came just after me – those born after, say, 1992 – and all 10-13 year old boys since: any one of them can see more naked women on their phone in 10 minutes than most grown men in history saw in their entire lifetimes. They can also, of course, see women performing acts most men in history would never have dreamt up, let alone witnessed. And unsurprisingly, in overwhelming numbers, this is precisely what they choose do. The government, slowly waking up to the issue, issued a cross-party report in 2012 that revealed one in three boys of this age had viewed explicit material online, with four out of five becoming regular uses by the time they were 16.
...[I]ncreasing numbers of men who have reached their early twenties having grown up on this diet of unlimited porn are reporting some draw backs, including a decreased interest in “real” sex, an inability to ejaculate during it and – worst of all for most – erectile dysfunction. At the same time, the young women they’re sleeping with are reporting their own problems, chiefly unrealistic expectations for things like anal sex, facials and general “porn star” behaviour: pressure to look and perform in ways they’re often not comfortable with....
On 16 May 2012, a video of a Ted Talk called “The Great Porn Experiment” was placed on YouTube, and has been watched two-and-half-million times since. In it, a retired physiology teacher called Gary Wilson claims: “The widespread use of internet porn is one of the fastest moving global experiments every conducted.”
His argument is that we don’t know what happens to young men when they can watch an unlimited amount of pornography – both in terms of volume and variety – before they’ve had any kind of real-life sexual experience, because it has no precedent in history. Only now are the “guinea pigs” of the internet era reaching the age where they can tell us.
Any philosophers working on this? Any links to relevant empirical literature on these developments?
Is this the way the world ends? When groups that share common cause, utopian dreams and a joined mission find fault with each other instead of tearing down the banks and the bankers, the politicians and the parliaments, the university presidents and the CEOs? Instead of realizing, as Moten and Hearny put it in The Undercommons, that “we owe each other everything,” we enact punishments on one another and stalk away from projects that should unite us, and huddle in small groups feeling erotically bonded through our self-righteousness.
I want to call for a time of accountability and specificity: not all LGBT youth are suicidal, not all LGBT people are subject to violence and bullying, and indeed class and race remain much more vital factors in accounting for vulnerability to violence, police brutality, social baiting and reduced access to education and career opportunities. Let’s call an end to the finger snapping moralism, let’s question contemporary desires for immediately consumable messages of progress, development and access; let’s all take a hard long look at the privileges that often prop up public performances of grief and outrage....
Interesting piece sent along by reader Joe Hatfield--can any of the philosophers of physics (or physicists) out there comment on the adequacy of this presentation and the significance, if any, of all this?
Justice Sotomayor (and colleagues) are exactly right about this. Note that Wheaton, a not-for-profit religious organization, is claiming that the requirement to fill out some paperwork in order to be exempt from the requirement to pay for health insurance covering contraception is a substantial burden on its free exercise of religion. The claim is preposterous on its face, as Judge Posner made clear during oral arguments on this issue in the 7th Circuit a couple of months back. I still suspect that when this gets to the Supreme Court, they are going to side with the government, not the Wheatons.
UPDATE: Here's the full opinion. P. 11 of Justice Sotomayor's dissent is very good and goes to the issue the majority got wrong in Hobby Lobby as well. A lot of the dispute here is about the standard for granting injunctive relief under the All Writs Act, about which I know exactly nothing. It is worth emphasizing that the granting of the injunction is not a decision on the merits of Wheaton's claim, it just stays the law until the merits are adjudicated.
Your posts clarified today's ruling, though the whole thing seems rather complicated.
My first response is to suspect that Roberts and Scalia view the constitution and the amendments as an appendix to the Bible.
Is it too cynical to suspect that their ruling was influenced heavily or subtly, by their faith? I'm surprised they didn't quote scripture in their decision.
The logic of the case as it appears to the common sense of the man on the street is that employees are prevented from doing legal actions in their private lives because their bosses feel uneasy with it. In this case because of religious beliefs which are somehow privileged.
In the minutia of the ruling isn't the broader point of the rights of citizens overshadowed?
Your comments puts this in perspective. It's not the end of the world or America. But isn't it disturbing?
I agree it is disturbing, though I have to confess my expectations were so low that I was pleasantly surprised by the way in which the majority opinion tried to narrow the import of the decision. I think there is no doubt that many, perhaps all, members of the majority were influenced a bit by their religious commitments; but even more so, I think they were influenced by their political ideology and the desire to "throw a bone" to the right-wing religious crazies, a point nicely made by law professor Joey Fishkin. The "common sense" perspective Mr. Berman describes aptly captures what is wrong with the Court's finding that a requirement to pay for insurance substantially burdens "free exercise" in this case, a point with which I am wholly sympathetic.
My own prediction is that the decision will generate some nuisance litigation--various family-owned businessed controlled by religious crazies of one stripe or another will try to challenge their disfavored medical procedure, and they will pretty uniformly lose in the lower courts--but that it also poses a real risk for LGBT rights. Justice Alito, a right-wing Catholic, in his majority opinion went out of his way to say that the decision would not exempt a religious racist from having to comply with anti-discrimination laws pertaining to race, but he said nothing about laws prohibiting discrimination based on gender and, more ominously, sexual orientation. The ray of hope here is that Justice Kennedy, who joined the majority in Hobby Lobby, also wrote the rather aggressive majority opinion in Lawrence v. Texas, striking down all homosexual sodomy statutes nationwide; he is likely to view anti-discrimination laws about sexual orientation as on a par with those about race, and so is likely to conclude both that government has a compelling interest in eliminating anti-gay discrimination and that there is no other way to do that than to prohibit such discrimination tout court.
I expanded my earlier posting, for those who might be interested, but let me correct a few mistakes about the decision I've been seing on social media from other philosophers:
1. The decision does not hold that corporations are people with free exercise rights. It holds that closely held corporations, e.g., the family-owned businesses who brought the legal challenge, have free exercise rights. General Motors has no cause of action against anything after today's decision.
2. The decision does not deprive employees of access to contraception. The Court accepts that the government has a compelling interest in insuring such access, and notes that the government had already found a way to insure that such access was met while allowing religious not-for-profit organizations (e.g., the University of Notre Dame) to opt out of paying for it: namely, requiring that the insurers cover the entire cost of such contraceptive coverage for employers with religious objections. The Court points out the same alternative is available for closely held corporations whose owners have religious objections to contraception.
3. The decision was not a constitutional decision; it was based on a federal statute, the Religious Freedom Restoration Act. RFRA is a bad law, and as readers of my book know, I oppose such carve-outs for religion; but given RFRA, the Court's decision is not wholly surprising.
4. It's contentious, but not ridiculous, to argue that closely held corporations can be "persons" for purposes of RFRA. The Court gives some fairly sensible reasons for thinking they can be in the opinion.
5. The major error in the Court's reasoning occurs at p. 36 of the majority opinion (Justice Ginsburg notes this problem at pp. 21-22 of her dissent). The Court has long held that it will not adjudicate whether religious beliefs are sensible, only whether they are religious and sincerely held. But that does not mean that the Court must defer to the religious person's beliefs about whether the law substantially burdens their religion: that is a question for the Court. In this case, it strains credulity to suggest that Smith's sincere religious belief that life begins at conception and that therefore the "morning after" pill is akin to murder is somehow "burdened" because Smith must pay for health insurance which an employee might use to seek medical services of which Smith disapproves. The Court should have found there was no "substantial burden" on Hobby Lobby in my view.
He had some pretty good political reasons for being skeptical, though in different places and at different times they might not hold. Compared, however, to the stupefying tedium of baseball and American football--both of which have many of the vices Borges associated with soccer in Argentina--one can only be grateful that soccer rules the rest of the world!
Set aside for the moment that this decision lacks any evidentiary basis. Another judge might have heard the same parade of witnesses and reached a different conclusion.
Bear in mind that the case will be appealed to a higher court, and will continue to be appealed until there is no higher court.
It is not unreasonable to believe that the California Teachers Association might negotiate a different tenure process with the Legislature, perhaps a requirement of three years probationary status instead of two.
The one thing that does seem certain is that, contrary to the victory claims of hedge fund managers and rightwing editorial writers, no student will gain anything as a result of this decision. Millions more dollars will be spent to litigate the issues in California and elsewhere, but what will students gain? Nothing. The poorest, neediest students will still be in schools that lack the resources to meet their needs. They will still be in schools where classes are too large. They will still be in buildings that need repairs. They will still be in schools where the arts program and nurses and counselors were eliminated by budget cuts.
If their principals fire all or most or some of their teachers, who will take their places? There is no long line of superb teachers waiting for a chance to teach in inner-city schools. Chetty and Kane blithely assume that those who are fired will be replaced by better teachers. How do they know that?
Let’s be clear. No “grossly ineffective” teacher should ever get tenure. Only a “grossly ineffective” principal would give tenure to a “grossly ineffective” teacher. Teachers do not give tenure to themselves.
Unfortunately, the Vergara decision is the latest example of the blame-shifting strategy of the privatization movement. Instead of acknowledging that test scores are highly correlated with family income, they prefer to blame teachers and the very idea of public education. If they were truly interested in supporting the needs of the children, the backers of this case would be advocating for smaller classes, for arts programs, for well-equipped and up-to-date schools, for after-school programs, for health clinics, for librarians and counselors, and for inducements to attract and retain a stable corps of experienced teachers in the schools attended by Beatriz Vergara and her co-plaintiffs.
Her whole blog has quite a lot on this latest salvo by billionaire busybodies out to destroy public schools.
Another reader wondered what the import of this would be in other states and for tenure in colleges and universities. As I understand it, the trial court's decision was based on a state constitutional right to an education. My guess is all states recognize a similar right (I haven't looked into this), but the court's decision was based on factual findings about how rules about tenure (and the like) affected the educational experience of the children. Other courts in other states may or may not reach similar conclusions. (The decision may also be overturned or modified on appeal in California.) The right to a public education does not, typically, encompass university education, so it is doubtful that argumentative strategy would work in an attack on tenure at the collegiate level. It also would have no force for tenure at private schools, where it is standardly a contractual right.
UPDATE: Philosopher/lawyer John Bogart writes:
Headlines notwithstanding, the decision does not hold that tenure for public school teachers is contrary to the California Constitution. The news coverage and public understanding will likely see it that way, but what the judge held was not that tenure violated the Constitution.
He did hold that (1) requiring tenure decisions after 12 to 18 months on the job, (2) onerous requirements for discharge decisions and (3) mandatory LIFO layoff policies violate the California Constitution. Nothing in the opinion even suggests that tenure is per se out — there is no endorsement of at-will employment. If tenure decisions were made after 3 to 5 years, that would likely pass muster, for example.
Still, the public understanding will be that tenure is somehow unconstitutional.
God Bless America! The possible good news here is that the Tea Partification of the Repugs will consign them to the dustbin of history. The possible bad news here is that this signals the move of the Repugs even further to the right without any loss of political influence.
Continental Philosophy Farhang Erfani, a philosopher at American University, provides a useful set of links to news, events, interviews, reviews, videos, etc. related to "Continental philosophy" (broadly construed)