Jonathan Turley Attacks Above The Law Because... Cancel Culture Something Something

He still knows that 'disagreeing' with speech is not illegal, right?

(Photo by Chip Somodevilla/Getty Images)

We’ve written before about Jonathan Turley’s journey from Con Law luminary to shameless panderer to right-wing hot-button issues. The constitutional law scholar we all respected in the 90s now spends his time beating up nonsense straw arguments about executive power and complaining about “all this crazy ethnic food.”

The guy went out of his way to debunk his own past scholarship when the spotlight needed someone — anyone — with a fancy title to sacrifice their reputation at the altar of Trump.

Look, law professors willing to say that right-wingers are mangling hundreds of years of precedent are a dime a dozen. The only way to stand out is to throw in with the conservatives and if that means performatively acting like you’ve never heard of Chicken Tikka Masala, so be it.

Now he’s decided to wade into the “cancel culture” debate because that’s the next Infinity Stone in the cable news hit gauntlet. And he’s decided to go after that chit by attacking… me?

All right, dude. Let’s see what you’ve got.

Writing in The Hill, Turley focuses on my article about a number of law students at Duke resigning from their journal because the faculty is going forward with an article that the student editors object to including in the publication:

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Some legal columnists echoed calls to ban those with opposing views. The legal site “Above The Law” (ATL) published an article denouncing the faculty for supporting free speech. ATL editor Joe Patrice ran a factually inaccurate tirade against Duke for using academic freedom as “a shield for professors to opine and behave in ways that marginalize others.”

Before we get any further, we’ve got to address the misleading “factually inaccurate tirade” comment. That phrase links to Jonathan Adler’s piece in Reason which — as I addressed in an update to the original post — misses the point of the original article. But Turley’s repeating it to an even bigger audience now, so we need to lay it all out again.

The original article was pretty straightforward: (1) a journal plans to give a forum to a Trans skeptic who is the subject of sharp criticism from her colleagues both within her school and within her field generally; (2) several student editors said they were uncomfortable having their names on a masthead peddling this rhetoric; (3) the Faculty Board told the students they were going to include the article anyway; (4) several students resigned. Is this factually accurate? Of course. The statement from the Faculty Board confirms each of these facts.

Adler’s article zeroes in on the key sin of my piece: suggesting that the students had any choice in the matter. I off-handedly called the journal, Law & Contemporary Problems, “student-run” before complaining generally that schools use students as journal labor on the claim that they respect the students as professionals. In fact, Adler points out, the faculty have the final say on this specific journal by design. This — and this alone — was the “factual inaccuracy.” If that seems to you like a non-sequitur in the context of the whole article, you’d be right. But it’s the basis for branding the whole article as factually inaccurate in The Hill.

Imagine how blinkered by ivory tower life one has to be to read my story and think the core conflict is “did the faculty usurp student authority when they ignored students to publish a Trans skeptic?” or “did the faculty exercise their prerogative when they… ignored students to publish a Trans skeptic?” As another law professor wrote me after Adler’s piece went up, knowing that it’s faculty edited “actually seems like this is a worse labor issue.” Indeed.

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With the unwarranted swipe at the student-run thing aside, Turley — who, to his credit, seems to understand that the Reason post is a dumb sideshow and focuses on my actual arguments — quotes my post where I state that academic freedom is not an end to itself but a means to promote inquiry that “improves the academic mission of improving the human condition.” I should’ve used a “furthers” there… bad word echo. Sorry.

Anyway, he responds:

In other words, you are entitled to free speech so long as you cannot be accused of “marginalizing” others.

In other words, we’re just going to turn this into another straw argument. What I’m actually saying is that there’s a reason we have astronomy conferences without inviting non-heliocentrists. Not every idea advances the academic mission. You can talk about sex and the law and even the state of the Trans legal protection landscape without inviting someone — a non-lawyer for that matter — to criticize the underlying concept of Trans women. The students in this case, as well as many academics in her field, don’t think the debate over the law in this area is improved by her contributions at this time. That’s not silencing her… that’s how academia is supposed to work.

But Turley’s blowing by that and trying to bootstrap this onto the larger ideological mission of the right these days: confusing “free speech” with “the proper functioning of the marketplace of ideas.”

Sometimes ideas enter the market… and lose. And people are free to hold those trash ideas and talk about them all they want, but the academy isn’t obliged to lend its institutional goodwill to hyping them. For folks like Adler — who I just remembered was also on the “law schools should use affirmative action to hire more of my FedSoc friends” nonsense — and Turley, and all the other budding Substack artists out there, their definition of “free speech” is “direct institutional intervention to salvage our ideas for lacking enough merit to hold their own.”

Ultimately that’s all “cancel culture” is: the marketplace of ideas working. People are voting with their feet not to listen to you.

After more hyperbole about stuff that my former ATL colleague Elie Mystal has said, Turley lumps the two of us back together to accuse us of burdening free speech with troublingly arbitrary standards:

Dangerous thoughts are ill-defined beyond being rejected by these writers. Under this approach, free speech becomes like pornography under the famous test of Supreme Court Justice Potter Stewart: “I shall not today attempt further to define the kinds of material … and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

I’m sorry, when did an academic journal become the state?

This is utterly disingenuous pandering and Turley is — one sincerely hopes! — aware of that. This is nothing like issuing fuzzy legal standards (and that was from the concurrence for what it’s worth) for statutes criminalizing porn.

None of my article asks a government to intervene to stop professors from thinking the way they do or from publishing wherever people will let them. I argue, in the way the Framers intended, that while the government can’t dictate speech, private universities gratuitously managing academic publications have every right in the world not to publish something. It’s “free speech” to publish this and it’s “free speech” not to publish it — the concept has no bearing at all on the issue at hand.

In this case, several people that the school trusted enough to give spots on the masthead are saying “this is a bad use of our forum.” The faculty had the right (and the authority! just to make Adler happy) to ignore those students… but they are wrong to do so.

In other words, just because they coulda doesn’t mean they shoulda.

Turley surely knows this, but instead it’s almost 1,200-word jeremiad muddying the discussion spiced up by a lot of “campuses are too hostile to conservatives” and “I don’t like when professors voluntarily confront their own racism” anecdotes. The whole thing smacks of “please book me on tonight’s Tucker to discuss!”

And, sadly, perhaps it is.

The rise of a generation of censors: Law schools the latest battlement over free speech [The Hill]

Earlier: Student Staff Resign After Duke Law School Faculty Try To Force Anti-Trans Article Into Journal
Jonathan Turley Wanted For Vicious Murder Of Nonsensical Straw Arguments Of His Own Making
Jonathan Turley Doesn’t Understand All Your Crazy Sounding Ethnic Food!


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.