Cause for Celebration? Wrong Verdict? Maybe Both?

Shiloh Hendrix at her trial.

Curmie has often claimed to be more of a civil libertarian than a liberal, but there are limits to that analysis.  He believes, for example, that the 2nd Amendment doesn’t mean that the general population ought to have ready access to semi-automatic weapons.  We’ve gone over those arguments before, and they needn’t be repeated here.

The 1st Amendment has similar boundaries: slander, “true threats,” incitement to immediate illegal activity, etc.  You can’t yell “Fire!” in a crowded theater, and so on.  But some situations aren’t so easy to classify.  One recent example would be pro-Palestinian protesters chanting “from the river to the sea.”  It’s not difficult to imagine a scenario in which those words could reasonably be construed by some onlookers as a “true threat,” but the mere fact that someone might be offended or even apprehensive isn’t enough to deny 1st Amendment protection.

Or at least that’s Curmie’s view; his position is supported by the likes of Eugene Volokh and Will Creeley.  They are, respectively, one of the most-respected constitutional scholars in the country and the legal director at the Foundation for Individual Rights and Expression (FIRE). 

The most recent case to make national headlines concerns Shiloh Hendrix.  She’s the Minnesota woman who was recently convicted of disorderly conduct for calling a young black boy a “nigger.”  Well, actually, despite what a lot of the headlines imply, she was acquitted of that charge.

OK, here we go.  In April (naturally, Wikipedia says May) of last year, Hendrix, who is white, took her toddler to the park in Rochester, MN.  Curmie is trusting the account of FIRE’s Aaron Terr on what follows: an 8-year-old black boy allegedly reached into her diaper bag and took (i.e., stole) an applesauce pouch.  Hendrix then chased after him, and called him a “nigger.”

This caught the attention of a bystander, Sharmake Omar, who is also black.  Omar starts recording on his phone, criticizing Hendrix’s use of the racial slur.  She responds, “it’s none of your fucking business,” and adds a gesture that one of Curmie’s Irish friends refers to as “the long finger.”  Omar then challenges her to repeat the word; she obliges: “Fuck you, nigger. Nigger, nigger, nigger.” <Sigh.> 

After a little more cross-talk, she walks away, meaning there was never even a threat of violence.  Omar says, “OK, we’ll see about that, what the internet has to say about you.” That threat was indeed realized, as the video went viral, and Hendrix ended up being charged with three counts of disorderly conduct, that all-purpose charge which is sometimes legitimate and sometimes a stand-in for “you didn’t really do anything illegal, but we didn’t like it.”

Two of the three counts (Curmie can’t figure out what the third one was for… saying “fuck,” maybe?) went forward to trial, where Hendrix was actually acquitted for her using the slur to the child but convicted for her interaction with Omar.  Curmie can’t quite wrap his head around the reasoning there.  After all, Omar was egging her on; he’s as responsible as she is for that altercation.  All Curmie can think of is that what she said to the boy isn’t recorded.  Hendrix doesn’t explicitly acknowledge Omar’s allegation, so the evidence is perhaps a little shaky. 

There are other questions, too, before we get to the central argument.  Why wasn’t Omar called as a witness?  Was he, as some commenters on video posts suggested, “back in Somalia” (voluntarily or otherwise)?  Why did Shire Jimale, the boy’s father, testify?  If he was there at the incident, why didn’t he prevent his kid from stealing the applesauce?  (Or, whether he was there or not, teach him not to take other people’s stuff?)  If he wasn’t present, who was looking after the boy?  And what does he have to offer that is in any way pertinent?  That the boy is autistic has no relevance to Hendrix’s behavior, and therefore none to the case.

Is it relevant that Hendrix was doxed and raised some $860,000 for attorney’s fees and relocation?  Or that the NAACP raised over $300K for the boy?  Is there anyone in this case who we can actually cheer for?

Finally, Curmie notes that there seems to be something magical about the term “nigger” and its ability to trigger a response.  If the demographics were different (and remembering that it’s the encounter with Omar, not the boy, that got Hendrix convicted) would there even have been a case if the offensive term were “fag” or “spic” or “kike”… or “cheese-eating surrender monkey”?  Curmie has a couple of black friends who think that proverbial “n-word” really is different.  Curmie respects their perspective but struggles to see why he should agree with it.

The case is also intriguing for another reason.  Unlike the MAGA faithful, Curmie doesn’t think that something isn’t a problem just because he’s never personally seen it manifested.  That said, it’s been decades since he heard that—or, indeed any—racial slur applied in the speaker’s own voice, that is, not as an actor in a play or film, or as a critic, professor, or journalist quoting from a book, movie, etc.  That’s because most people, especially those with whom Curmie chooses to associate, have learned that using offensive terms, even those that were once commonplace, just isn’t cool.  So, there’s an added level of shock.  None of the foregoing, of course, is in any way intended to deny the experience of those who have indeed been on the receiving end of such verbal assaults.

So now we finally get to the key question: should that which is reprehensible automatically be illegal?  Curmie thinks not, not merely because that’s what seems in keeping with constitutionality, but also because assigning parameters of offensiveness sort of defeats the whole idea of free speech.  If Curmie calls some politician a “scum-sucking shitgibbon,” that’s part of the give-and-take of democratic (lower-case “d”) politics.  And if that pol responds in kind, that is, too.

Of course, there are limits.  Curmie may have pretty much abandoned Jack Marshall’s Ethics Alarms blog when it took a hard right turn into defending (or ignoring) indefensible behavior of the Trump administration, but there are some topics for which Jack’s perspective remains valuable.  His delineation of the relevant past SCOTUS rulings is particularly useful, even if the resulting guidelines are, in his words, “clear as mud.”

There are good arguments both ways, which is why the topic intrigues Curmie.  No one Curmie wants to associate with would use the word “nigger” the way Hendrix did.  Unlike, say, “from the river to the sea,” there is no other possible meaning except as slur.  That’s relevant, but does it meet the “fighting words” threshold?  Curmie doesn’t know, but presumably the jury thought so.  And, of course, a lot of the support, monetary and otherwise, Hendrix has received has come from other racist jackasses.  Most of them are savvy enough to cloak their vitriol in 1st Amendment garb, but the racial animus is still perceptible.

All that said, Curmie is still going to side with the civil libertarians on this one.  As Terr points out,

The video merely shows a heated verbal exchange between Hendrix and Omar. No threats. No violence. Nothing beyond words. However much offense they caused, that simply does not justify the government imprisoning, fining, or otherwise punishing the speaker. A public argument does not become a crime because a speaker used a particular word.

Hendrix’s behavior was unquestionably unethical.  She deserves to be shunned.  But if acting like an asshole for a minute or so is actually illegal, then virtually everyone in the country would have a criminal record.  “Yes,” as Terr says, “that means we must sometimes tolerate speech we find repugnant. But that’s the only way to ensure the speech we value remains free.”

In other words, Curmie thinks the prosecutor and the jury got it wrong.  (The defense attorney claims the judge was against him, too.  Curmie isn’t going to take sides in that squabble.)  But there are two reasons to be at least cautiously optimistic.  They seem to contradict each other, but that means that one of them (at least) is likely to be true.  Hendrix has already appealed the conviction, meaning that it will be reviewed by at least one higher court, possibly all the way up to SCOTUS.  An acquittal cannot be appealed, and double jeopardy would apply.  The conviction, then, allows a little more judicial light into the room. 

That is, one of two things must happen.  Curmie doubts that the conviction will be upheld, but if it is, then racists, homophobes, and similar bigots of the future might be a little more reticent about spewing their hatred into the world.  That would be a good thing.  If Hendrix wins on appeal, then the spirit of the 1st Amendment would be upheld, and some court, perhaps even SCOTUS, would be forced to better define the parameters of protected speech.  That, too, would be a good thing.

Oh, and both the city and Hendrix will have to spend a lot of money on the appeal process.  Good.  They both deserve it.

Small-Town Cop vs. 1st Amendment. (Sigh.)

Last October 18, at a No Kings protest in Fairhope, Alabama, sexagenarian grandmother Renae Gamble was arrested for wearing the outfit you see here.  In case you can’t see the image (Blogspot has been a little weird lately), she’s wearing an inflatable penis costume she bought at the local Hallowe’en supply store (it was late October, remember) and carrying a sign reading “No Dick Tator.”  That’s only mildly clever and a little vulgar even for Curmie’s taste, but it is unquestionably protected by the 1st Amendment, the same way those “Fuck Joe Biden” chants and signs were a couple years ago. 

Not according to police corporal Andrew Babb, who declared the costume “abusive” (!) and an affront to a “family town.”  The video from Babb’s body cam makes a couple of things clear.  One is that yes, there is an illegal act shown, but it isn’t anything Gamble does.  She clearly asks “Am I being detained?  If not…”  It’s a little difficult to make out the last part, as she’s turned around and is walking away, but the transcript on the YouTube page says “I’m going to go ahead and leave,” and that seems pretty accurate.  Importantly, she wouldn’t be asking if she’s being detained if he’s made it clear that she is.  And it’s not like she’s going to outrun him.  All he has to do is either say “yes” (instead of continuing to yell at her) or simply step around in front of her.  Instead, he tackles her.  That’s assault.

Shortly thereafter, Babb says that “I told her to take it off.”  That demand never appears on the video.  Perhaps he did so before starting the recording, but the simplest and indeed most probable explanation is that he’s lying about that part.  Then, of course, she has to be taken into custody.  And all of a sudden that unconscionably objectionable costume—the one Babb said he insisted Gamble take off—needs to remain on… resulting in a scene that would have fit readily into a bit starring Buster Keaton, Benny Hill, or perhaps Lucille Ball, as the cops try to maneuver Gamble into the squad car while she’s roughly seven feet tall with a waistline of 70 inches or so. 

It was hilarious… except for the whole “this actually happened” part.  Finally, they manage to remove the costume.  Noteworthy here is that she couldn’t take it off by herself, and no one else is under any obligation to help.  (Her fellow protesters would have, of course, at the end of the events, but not at the behest of some self-important cop.)

Somewhere along the line, Babb asks for her name; she replies, “Aunt Tifa.”  He then proceeds to call her that.  Is he really so stupid that he doesn’t know she was being a wise-ass, or did he just pretend so she could later be charged with giving a false name to law enforcement?  Curmie doubts that Babb is smart enough to have adopted the latter strategy, but it’s a possibility.  Gamble was later charged with that particular offense, by the way.

Anyway, after a couple of delays, one of them because a Christian College Fair was booked into the building on the original trial date (Curmie fancies himself reasonably creative, but he couldn’t make this shit up), Gamble will be headed to trial next week, charged also with disorderly conduct (what?) and resisting arrest, which the video shows never happened. 

There is literally no evidence that Gamble committed any crime, but the reactionary and pearl-clutching mayor, city attorney, and city council president seem stuck in the Victorian age, so Curmie isn’t going to try to predict what judge Haymes Snedeker is going to do with this case.  Of course, Mayor Sherry Sullivan went all-in on the straw man arguments, proclaiming that “Protests should remain peaceful and free of profanity and obscene displays.”  There can, of course, be no suggestion that anything Gamble did was anything but peaceful.  Profanity and obscenity, of course, are more in the eye of the beholder, or in the squishier realm of “community standards,” but Curmie notes the perceptive comment of Heidi Veyance on the Fairhope Police Department’s Facebook post about the incident: “Can we assume that all reports of sightings of ‘truck nutz’ will be treated with an equal amount of seriousness & dealt the same punishment?”  Touché.

The video linked about, from the Intercept YouTube page, is the one that has the more complete transcript.  But Curmie let his inner 12-year-old out for a stroll, and from that perspective, the better comments are on the PoliceActivity page: she was “Only charged with a misdewiener”; “They couldn't get it to stand up in court”; “Her lawyer is gonna take her case pro bone-o”; “This definitely falls under some type of penal code” which “carries a stiff sentence”; that she’s likely to be acquitted by a “hung jury”…  Oh, and a direct quotation from Babb: “It’s illegal to come in the street.”  Another site suggests that “the three policemen must have been scared stiff.”  You get the idea, Gentle Reader.

So, summing up: The chances that a cop is a self-righteous idiot are already pretty high.  Make him a small-town cop, and the odds increase.  A small-town cop in the south?  We’re perilously close to ontological certitude, and Corporal Babb is pretty clearly not an exception.  Unfortunately, his apparent unfamiliarity with the Constitution isn’t the only criticism that can be lodged against him.  He’s also… well… let’s just say that Curmie agrees with the commenter who suggested that Gamble’s real crime was impersonating a police officer.

There's No 3-D Chess Here

Nope.

It had probably been months since Curmie had heard the term “3-D Chess” to describe someone so strategically brilliant as to leave the rest of us in the dust.  Then he encountered the metaphor twice on Wednesday of this week.  In both cases, Curmie’s response was, shall we say, skeptical.

The first occurrence was during the FIRE members-only webcast.  One of the viewers asked if it was possible that the administration at Texas A&M was in fact sympathetic with faculty who just want to teach their courses based on their professional expertise.  The argument, you see, was that censoring Plato in a Philosophy course was so remarkably stupid that it invites a lawsuit, which would, hypothetically, free the university from the grotesquerie that is SB37.  In other words, university policy-makers—the Regents and the administration—were hoping for a 1st Amendment challenge to an obviously unconstitutional law.  It would succeed, and control of the curriculum would thereby be wrested from idiot pols and returned to its rightful place, the university itself.

It was not an outrageous question, but FIRE’s General Counsel Ronnie London doubted that university officials were indeed “playing 3-D chess.”  He granted the possibility, but made it clear that such a scenario was unlikely.  Curmie agrees, not merely because he doubts that anyone would employ such a strategy, but because the Regents are appointed by ultra-right wing Governor Greg Abbott, whose fingerprints are all over the legislation in question… and they, in turn appoint the President.  The principal qualifications to be a Regent for a state university in Texas are simple: you must be a rich Republican who neither knows nor cares anything about higher education except as a means of advancing a political agenda.  Abbott certainly found his flock at A&M.

Remember, too, that last fall a young woman described by Curmie as “a single narcissistic and reactionary student” objected to a discussion topic because it violated an Executive Order from Dear Leader, and the professor, department chair, dean, and president all lost their jobs. 

By the way, it’s been reported that the reason that the department chair (and presumably those up the food chain) got in trouble was that they allowed the prof to teach something that wasn’t in the course description.  As a side note: when Curmie came to the university from which he is now retired, the catalog description for the second half of the Theatre History sequence said the course stopped chronologically at World War II.  Curmie said he was going to extend the timeline to the present, thereby including absurdism, the Angry Young Men, Off- and Off-Off Broadway, playwrights like Tennessee Williams and Arthur Miller, feminist dramaturgy, deconstruction… well, you get the idea, Gentle Reader.  

And get this: Curmie’s boss agreed to it without any hesitation!  Such insubordination from a department chair!  We did, by the way, change the course description, but it took a couple of years to get the revisions through the system.  In the meantime, it would appear that Curmie and his boss were both very naughty, indeed.  Luckily, the statute of limitations has run out.

But revenons à nos moutons.  The powers-that-be had their chance to challenge or even circumvent the state’s censorial policy and passed on the opportunity.  If the Regents actually wanted to halt this unconstitutional idiocy, they would have done so.  Nope.  They’re absolutely complicit.

So now we turn to the other contender for “3-D chess” designation: 47’s stated intention of annexing Greenland through whatever means necessary.  Actually, the CNN story Curmie read references MAGA-dom’s belief that Dear Leader is playing 4-D chess, and similar inanities have apparently been uttered not infrequently for some time, especially with respect to events in Venezuela.  Curmie either just didn’t see them or succeeded in ignoring them.

Last Friday, Chris Cillizza’s YouTube post (which Curmie didn’t see until today) opened with some pretty open mockery of the idea that “Donald Trump is always playing 3- or maybe 4- or maybe 5-dimensional chess, while the Democrats, the reporters covering him, everyone else, is sort of playing checkers at best.  The essence of the argument is that Trump is so strategically smart that he’s always multiple moves ahead of everyone else.”  Cillizza proceeds to talk about the strategic stupidity involved in describing Susan Collins, the most vulnerable Republican Senator seeking re-election, as a “disaster” who “should never be elected to office again.”  Collins, of course, only votes against GOP directives when it won’t make any difference (a point Cillizza doesn’t raise), and of course her vote on a procedural matter that will lead to nothing substantive fits that description nicely.

So Cillizza has a point.  But the true coup de grâce came a couple days after Cillizza’s piece, when Greenland became the topic of conversation on Sunday and then again on Wednesday.  The apologists’ argument is that only by threatening to invade an ally could Trump get Western Europe to send troops to protect Greenland, even if the perceived enemy is… well… us.  Pursuing this policy is far stupider than attacking Susan Collins. 

Sure, Greenland has some strategic importance, and we’d rather not have it taken over by Russia or China.  But first of all, that isn’t going to happen, and secondly, the downside of 47’s bluster is enormous.  His recklessness on the international stage has already cost this country more than can be regained in a decade or more of actual diplomacy and ethical leadership.  What ally would possibly trust the US now?  The idea that there would actually be a US military operation against Greenland would be laughable if we had a sane President.  As it is, the possibility looms. 

And if such an invasion were to take place, the situation would change from bad to cataclysmic.  There’s commentary out there that has been attributed to Brent Molnar (although why it doesn’t appear on his Facebook or Bluesky pages is a mystery).  Regardless of who wrote it, it’s pretty scary.  Curmie suspects it may be a little alarmist (“the world as we know it ends” may be a bit much), but virtually everything mentioned in the piece is at least a possibility if not a probability: the destruction of NATO is virtually assured; closure of American military bases in Europe, economic retaliation from the EU resulting in staggering inflation, the expulsion of US corporations from European countries, cessation of trans-Atlantic travel: all well within the realm of possibility…  It’s not a pretty picture.  

More to the point, not only would the loss of status, economic stability, and the moral high ground be devastating, there would be no upside.  The only country to gain from this ill-begotten fever dream is Russia, since European powers would be distracted away from supporting Ukraine.  Curmie judiciously refrains from wondering if that was the whole point.

Curmie would like to think that military leaders would either talk Dear Leader out of doing something so suicidal to American interests, or that they would listen to Senator Kelly and refuse an illegal order.  But when the Generals and Admirals are our last line of defense against a sociopathic POTUS with the maturity of a pampered toddler, we are neck deep in the shit and sinking fast.  Suddenly, “Doctor Strangelove” doesn’t seem so funny anymore.

So, no.  Neither the folks at Texas A&M nor in the White House inner circle are playing 3-D chess.  They’d be lucky to handle the complexities of Go Fish.

One More Reason Curmie Is Glad He's Retired: So He Doesn't Have to Deal with Crap Like This

Regular readers of this blog will know that Curmie is a retired professor who taught for two decades at a state university in Texas.  He taught theatre, mostly the “academic” stuff like theatre history and play analysis.  As mentioned in a previous post, he taught plays and essays by a wide range of authors: some concentrated on race, others on gender, others on sexual orientation.  He showed a video of the Noble Call of Irish drag queen Panti Bliss after a performance at the Abbey Theatre. 

Some authors were communists; others were monarchists.  Their religious beliefs were Christian or Jewish or Muslim or Buddhist or Hindu or… you know, atheist.  Some wrote realism; others wrote anti-realism; others a hybrid.  Many wrote before the concept of “realism” existed except as mimesis, the “imitation of an action.”  Outside the classroom per se, Curmie directed at least three plays (As You Like It, The Breasts of Tiresias, and A Servant of Two Masters) which involved cross-dressing in one form or another, and at least three others in which a role written for a man was played by a woman.  Curmie’s job was to bring as much of the depth and breadth of theatre to his students as he could, to broaden their horizons, and ultimately to turn them loose on the world, whether they chose to pursue a career in theatre or not.

He was, and is, something of an intellectual snob: not in the sense that he believed himself to be the authority on all things theatrical, but in the confidence that he knew what material needed to be covered in a theatre history course or a topics course on Asian theatre or Non-Realism Between the Wars at least as well as, and probably better than, anyone up the food chain, certainly better than anyone more than one step up.  He was lucky enough to have deans and provosts who stayed out of his way, and department chairs who may have given the occasional piece of advice, but never commands.  And partisan political hacks would do well to steer clear.

Was Curmie further emboldened by being granted tenure and further still by reaching the point where he could retire as opposed to resign if things got too problematic?  Yeah, probably.  But he also remembers a moment in grad school when some idiot state legislator (there’s another kind?) demanded that the university submit a list of all the courses that contained any reference to homosexuality.  Curmie’s solution, articulated in a letter to the editor of the campus newspaper, was simple: send the asshole a copy of the course catalog.  You might be able to strike a math course here or there, but the chances that Pythagoras engaged in activity that would now be called homosexual conduct at some point in his life are actually pretty high.  Besides, the demand was for a list of those courses, not for only those courses, and it we wouldn’t want to inadvertently leave something out, now would we?

Anyway, yesterday was an interesting day in the world of 1st Amendment rights for university professors.  On the one hand, Darren Michael, the Austin Peay State University theatre prof who was fired for posting a link to an article about Charlie Kirk’s argument that the 2nd Amendment was worth preserving even at the cost of a few lives, settled his lawsuit with the university.  As Curmie predicted, he got his job back along with $500k and a couple other goodies.  (Curmie didn’t predict the amount, but he knew it would be substantial).  All told, it was a nice FAFO message for the Austin Peay administration.

On the other hand, we also learned of Martin Peterson, a Philosophy professor at Texas A&M being essentially told that he’d either have to stop teaching Plato in his Contemporary Moral Issues course or be re-assigned to a different course, one that meets at 8:00 a.m.  Well, that’s slightly over-stated.  He’d have to skip the parts of Plato that some idiot state legislator (or weenie dean, or whoever) believes are icky.  As usual, Gentle Reader, please excuse the redundancy of both “idiot state legislator” and “weenie dean.”

Two essential points here: First, Texas A&M is a state institution, which means that the 1st Amendment cannot be circumvented just because a university administration or state legislature wants to do so.  Second, this isn’t some grad student in charge of this course.  Dr. Peterson is not merely a Full Professor; he’s got an endowed chair.  His MA and PhD are from Swedish universities, and he taught both in Sweden and in the Netherlands before accepting his position at A&M.  Oh, and he was a Research Fellow for three years at some place called Cambridge University.  Curmie is pretty sure he’s heard of that one.  If this man says that a particular reading from Plato is essential to his course, Curmie is going to believe him.  Nor are we talking about some obscure writing of Plato’s: it’s the Symposium, which is hardly a minor work.  Of course, Peterson is also the Chair of the Academic Freedom Council at A&M, which makes him an especial target for the censorial asshat brigade.

Professor Peterson dutifully submitted his syllabus for what he called “mandatory censorship review.”  That probably didn’t win him any points with… well, with the censors, but his description is apt.  There is a new policy adopted by the Board of Regents, declaring that “No system academic course will advocate race or gender ideology, or topics related to sexual orientation or gender identity.”  Peterson is politic enough not to mention that forbidding discussion of race or gender ideology is in fact a means of advocating a position on those issues: that the social conservatives’ dogma and suppression of other viewpoints should be unquestioned.  Curmie, you will have noticed, Gentle Reader, is not similarly politic.

What Dr. Peterson does argue is that his course “does not ‘advocate’ any ideology.”  Rather, he “teach[es] students how to structure and evaluate arguments commonly raised in discussion of contemporary moral issues.”  No reasonable interpretation of the word “advocate” would suggest that Peterson should be forced to alter his course in any way.  Of course, Professor Peterson also cites a litany of legal precedents in support of his contention that the system policy in question is unconstitutional.  Needless to say, he’s right about that, too, but it probably did him more (short term) harm than good to point out that the emperor was in a state of deshabillé.

Texas, of course, has a terrible record with respect to 1st Amendment guarantees, especially during the regime of Grand Censorial Poobah Governor Greg Abbott.  There was the illegal suppression of student protests at the University of Texas in the spring of 2024; Angelo State’s banning of discussion of discussions of transgender issues and the spread of that attempt at thought control throughout the Texas Tech system; West Texas A&M’s ban on drag shows (subsequently ruled unconstitutional); the ongoing investigations of anyone deemed insufficiently hagiographic in describing Charlie Kirk; the horrific SB37, which restricts curriculum and radically reduces the faculty’s input into decision-making; and SB2972, which is downright silly, and so on.  And on.  And on.

Texas A&M itself, of course, was the site of a major contretemps last fall.  Here’s Curmie’s description (it’s the first link in this essay): “a single narcissistic and reactionary student circulated a surreptitious video of challenging a professor for including a discussion of verboten (by Trump/Abbott) topics like gender identity and transgender people.  A grandstanding pol got involved, and soon the professor was fired, the dean and department chair demoted, and the president at the very least under fire.”  This is not what universities are supposed to do.

And now there are perhaps as many as 200 Spring ’26 courses at A&M that may be subject to censorship, lest the cherubim hear something that challenges their ignorance.  Dr. Peterson’s case is the tip of the iceberg. 

The good news is that every free speech and academic organization you can think of is all over this story.  Here’s FIRE: “The board didn’t just invite censorship, they unleashed it with immediate and predictable consequences. You don’t protect students by banning 2,400-year-old philosophy.”  And PEN America: “Censoring classical texts in service of political orthodoxy is antithetical to the goals of education. Universities exist to engage students in difficult inquiry and not to suppress ideas just because they make some uncomfortable.”  And the AAUP: “A research university that censors Plato abandons its obligation to truth, inquiry, and the public trust—and should not be regarded as a serious institution of higher learning.”  You get the idea, Gentle Reader.  Curmie, of course, is honored to join the chorus.

So, you may well ask, what is going to happen to Professor Peterson’s course?  Curmie was rather hoping that the good prof would sue the university, its president, its regents, Greg Abbott, and anyone else he could think of.  After consultations with his lawyer, however, Dr. Peterson has decided to revise his syllabus.  Instead of the readings from Plato, he’s going to substitute an article from the New York Times which deals more directly with contemporary moral issues.  Its title: “Texas A&M, Under New Curriculum Limits, Warns Professor Not to Teach Plato.”  

Well played, Professor.  Well played.

Three First Amendment Stories

There are just too many things to write about right now.  Curmie doesn’t promise FOC Steve that a piece on the bombing of those Venezuelan boats will happen, but he does intend to get to work on it soon, and that Politico article about the Young Republicans group chat—laden with about every variety of hatred, from misogyny to racism to antisemitism to homophobia and more—seems worthy of comment.

But Curmie can, as is his wont, bundle three different stories that emerged roughly simultaneously under the general heading of Censorial Asshatitude.  One of them is a little more complicated than the other two, which is to say there initially seemed to have been a little mitigation involved... key words: “initially,” “seemed,” and “a little.”  Let’s start there.

Curmie once thought about pursuing his doctorate at Indiana University, and even visited the campus.  He has a lot of friends who got their doctorates there, including one of his best friends from college, two from his first teaching gig, and two from a professional organization.  Oh, and another dear friend taught there for a decade.  Curmie is not by nature a hugger, but all six of these folks get a hug instead of a handshake if he ever sees them in person again.  So whereas he has no direct link to the university, he cares more about what happens there than he might for a similar university elsewhere.

Anyway, IU is trying to move their student newspaper, the Indiana Daily Student, online.  There are legitimate reasons for this, not least of them being a recognition of reality.  Curmie hasn’t read a print newspaper in years, and suspects that you might not have done so either, Gentle Reader.  All the signs suggest that print journalism will be little more than a memory by the time today’s undergraduates are ready to move into leadership positions, if not before.  In a discipline that, unlike the traditional liberal arts, really is intended to be pre-professional, gearing the operation towards an emerging future rather than a sentimentalized past makes a fair amount of sense.

But to say the administration was ham-handed in their execution would be a rather egregious understatement.  The transition to online, occasioned in part by financial concerns, has already begun, as what was once a daily paper had been printed only sporadically of late.  But as the staff was constructing an edition to be published this week, they were told… get this… not to publish any news stories, but to concentrate solely on Homecoming-related material.  A newspaper being forbidden from publishing news is, shall we say, headline-worthy.

The school’s Director of Student Media, Jim Rodenbush, objected to the move, citing the IDS’s charter: “final editorial responsibility for all content rests with the chief student editors or leaders.”  He may or may not have muttered the word “censorship” in the process.  He was, of course, fired for his efforts, because honoring agreements is so passé.  And when the student staff asked why, their entire edition was shut down.

Still, it seemed like the university had at least a whiff of a case: they pay the bills, after all.  But then the other shoe dropped.  The Federation for Individual Rights and Expression released a statement (well, technically a blog piece, but if it shows up on the website, someone in authority approved it) explaining that the real problem was that the student editors thought it worthy of publication that the university ranked 255th out of the 257 colleges and universities included in the latest of FIRE’s free speech rankings.

Apparently incapable of appreciating the irony of violating the 1st Amendment rights of a newspaper that had <checks notes> documented cases of violating 1st Amendment rights, the university administration, in the person of Dean David E. Tolchinsky, made things much, much, worse, both for the IDS and especially for the reputation of the university.  It is unclear whether Tolchinsky is a repressive jackass or simply an amoral toady who decided it was better to fire Rodenbush rather than risk losing his own, no doubt lucrative, gig.  It doesn’t matter.  He has done irreparable harm to both Indiana’s media program and the university as a whole.  He should be shit-canned.  Full stop.

Let’s stick with FIRE and a university, or in this case, a collection of universities.  This week, a federal judge David Alan Ezra issued a preliminary injunction against implementing Texas Senate Bill 2972, which just might be the stupidest piece of legislation ever passed in this state, and that is a very high hurdle, indeed.  It is nothing more or less than an attack on freedom of speech on all public university campuses in the state. 

You probably know, Gentle Reader, that Curmie is now retired from a public university in Texas, so he’s got a stake in this one even if only indirectly.  The bill expressly defines “expressive activity” as “any speech or expressive conduct protected by the First Amendment…” and includes “assemblies, protests, speeches, the distribution of written material, the carrying of signs, and the circulation of petitions.”  It then proceeds to “prohibit” “expressive activities on campus between the hours of 10:00 p.m. and 8:00 a.m.”  Inviting speakers to campus or using any form of sound amplification or percussive instruments during the last two weeks of a semester is also verboten.  (There goes that orchestra concert…)

Most of the rest of the bill suggests, legitimately, that reasonable time, place, and manner restrictions are appropriate, and that “disrupting the functioning of the institution” cannot be countenanced.  Not so, however, for the items mentioned in Curmie’s previous paragraph.  Those activities are outlawed whether or not they cause even the slightest ripple of disruption.

Curmie has reminded his readers repeatedly that he is not a lawyer… but the folks at FIRE are, and they point out that the bill would allow, even demand, that universities “punish everything from wearing a T-shirt with a message, to writing an op-ed, to playing music — even worship.”  FIRE Senior Attorney Adam Steinbaugh argues that “Texas’ law is so overbroad that any public university student chatting in the dorms past 10 p.m. would have been in violation.”  FIRE’s clients in bringing the suit to challenge the law range from the Fellowship of Christian University Students (FOCUS) at UT-Dallas to the Texas Society of Unconventional Drummers at UT-Austin.

Actually interfering with the functioning of the university, even to the extent of making too much noise in the dorm when others are trying to study or sleep, is one thing, but this stuff is ridiculous.  More significantly, this law begs for selective enforcement.  One can easily imagine that campus police would agree that wearing a MAGA cap on the daily 7:00 a.m. jog should be allowed, but that a “Black Lives Matter” shirt shouldn’t be (or vice versa).  Curmie directed more than one show that didn’t end before 10:00.  Should the last 20 minutes of Carlo Goldoni’s 1746 comedy The Servant of Two Masters be suppressed?  It’s certainly expressive speech, and you could call the audience an “assembly.”

Fact is, we could go on forever listing even a portion of the perfectly reasonable and unobtrusive expression that the bill would prohibit.  Let’s face it, whoever wrote this nonsense, or even voted for it, would come in third in a battle of wits with a tire iron and a dead armadillo.

Certainly it’s a good thing that Judge Ezra blocked the law from going into effect, noting that “The First Amendment does not have a bedtime of 10:00 p.m.”  (Curmie loves that line.)  But whereas an injunction is welcome, that doesn’t mean that the law has actually been overturned.  That is, of course, the consummation devoutly to be wished.  In a perfect world, of course, the court costs involved would be borne not by the state treasury, but shared by every idiot legislator who voted for this manifestly unconstitutional tripe.

But if SB2972 is notable primarily for its stupidity, Pete Hegseth’s latest attempt at controlling press coverage of the Pentagon is considerably more troubling.  The policy would require prior approval from the Pentagon before publishing anything related to their activity, even unclassified information.  As is a running theme through this essay, Curmie turns to FIRE for their take. 

They note an attempt by Trumpian acolytes to frame this censorship as protecting national security.  Hegseth writes: “There is a critical distinction between lawfully requesting information from the government and actively soliciting or encouraging government employees to break the law. The First Amendment does not permit journalists to solicit government employees to violate the law by providing confidential government information.”

The only problem with that statement is: that’s bullshit.  Actually, the First Amendment does permit journalists to do that, as FIRE’s Adam Goldstein writes, “The First Amendment has limited enumerated exceptions, such as speech that is defamatory, speech that would inspire imminent lawless action, and obscenity. ‘Asking a question where the answer might be classified’ isn’t on the list, and reporting on national security matters is protected speech.”

It’s a truism among lawyers (at least the TV versions of lawyers) that you should never ask a question of a witness in a trial unless you already know the answer.  Reporters work differently: they’re trying to ascertain the facts, not to advance a client’s interests.  Here’s Goldstein again: “While a journalist might reasonably infer that the United States is engaging in some activity that falls into the sensitive or classified categories, they don’t have any power to determine what answer they actually receive.”

In other words, perhaps Hegseth should concentrate on finding Pentagon staffers who will STFU if it’s appropriate to do so.  Faced with a question that might lead to divulging classified information, an employee might reasonably respond “no comment” or “I’m not in a position to answer that question.”  Lying shouldn’t be an option; neither should revealing classified, or perhaps even sensitive, information.  That doesn’t seem too difficult to Curmie.  Does it to you, Gentle Reader?

As Goldstein writes, the new policy shifts the blame to the press if some staffer says something they shouldn’t.  It also turns the Pentagon into a propaganda machine, cheerfully censoring anything that might be embarrassing.  Not “classified.”  Not “sensitive.”  Embarrassing.

As is well known by now, reporters from every news agency except OANN (and anyone who gets their news there is by definition beyond hope) turned in their badges and, as seen in the photo above, walked out en masse rather than be subject to absurd and unconstitutional restrictions.  There is, of course, a desperate attempt by the Trumpian minions to frame this as a partisan issue.  Nope.  True, the usual suspects—the AP, CNN, the New York Times, etc.—all refused to submit to the new rules. 

But so did Fox News, Newsmax, the Wall Street Journal, Military Times, The Daily Caller, the Washington Examiner, and the Washington Times.  That’s a pretty healthy list of right-leaning outlets that want their reporters to be journalists rather than propagandists.  Curmie respects these agencies for their integrity on this issue, even if on few others.  It’s harder to do the right thing when “your side” expects you to do otherwise.  So, kudos to them.

None of these three stories has run its course.  IU may or may not find its way back to obeying the Constitution.  A preliminary injunction is not the same as declaring a law unconstitutional.  The elaborate game of chicken at the Pentagon is likely to go on for a while.  These cases, like so many in other areas, show signs of authoritarianism but also signs of resistance, integrity, and hope.  We’ll lose some skirmishes along the way, no doubt.  But these are battles worth fighting, and Curmie (not known for his naïveté) cannot but believe we’ll ultimately emerge battered but triumphant.  We’re the ones who really want to make America great again.  Let’s do that.

Another Law School Violates Due Process

Scott Gelber

DEI practices are all over the news of late, but this post is about something that happened nearly two years ago.  Well, it started then.  In April of 2023, campus police entered the classroom of tenured law professor Scott Gelber at Ohio Northern University and marched him to a meeting with the law school dean, Charles H. Rose III.  Rose demanded that Gelber resign or retire, or he’d be fired.

Gelber did not comply, and he was escorted off campus, allegedly “to ensure [his] safety, the safety of others, and to protect the instructional integrity of the college of law’s program of instruction.”  (Curmie notes the lack of parallelism in that sentence from a law school dean with wry amusement.)  Gelber was charged with “repeatedly violat[ing] the provisions of the ONU Faculty Handbook and ONU Staff Handbook governing collegiality”; and his conduct supposedly “r[ose] to a level sufficient to support separation.”

Wow, he must have done something really, really, bad to merit de facto arresting him in front of his students and denying him due process, right?  Ah, Gentle Reader, you’re ahead of Curmie once again.  The fact is, we still don’t know exactly what Gelber allegedly did.  What we do know is that he was a vocal opponent of the school’s DEI policy, and that the right-wing press was all over this case when it first broke, with headlines like “Lawsuit describes appalled law professor who witnessed illegal hiring in name of ‘diversity.’”

Law students, as Curmie has noted on several previous occasions are apparently remarkably fragile creatures, and law schools are, ironically, even worse than other kinds of higher ed institutions at upholding the constitutional rights of their faculty.  (See Curmie’s commentaries on four such stories here, here, here, and here.)

OK, a couple of things upfront.  First, Curmie knows nothing about what, specifically, Gelber is alleged to have done.  Perhaps he really did do something egregious.  Curmie raises a skeptical eyebrow, but grants the possibility.  But even if the university is “right” on the facts of the case, there’s no excuse for the denial of due process or the unwillingness even to spell out the specifics of the charges. 

Curmie went through a similar situation with less dire potential consequences a couple of decades ago.  The college claimed he’d done something wrong, but wouldn’t say exactly what.  So the opportunity to defend against those charges was significantly curtailed.  Claiming you didn’t do anything problematic is evidence that you think it’s okay to do Big Horrible Thing; wondering if you’re being accused of X is granting that X is a Big Horrible Thing (and that you probably did it).  Curmie believes Joseph Heller created a term for this situation.

“Collegiality,” of course, is a squishy term in the best of times.  Curmie was once accused of uncollegial behavior because he argued against requiring students to participate in a colleague’s pet project (not that the project shouldn’t be available, only that it shouldn’t be required).  And the only way mere uncollegiality ought to prompt a response like what ONU did to Gelber would be if it rose to the level of illegality (a “true threat”), which should be handled by law enforcement, not the university.

It is well within the realm of possibility that Gelber said something that made one or more students “uncomfortable.”  Good!  Students, especially law students, ought to be confronted with ideas that challenge their pre-conceptions and prejudices.  The only way Gelber’s stating his personal beliefs is actually a problem is if he punishes students who disagree with him (or rewards those who agree).  If there’s evidence of that, ONU hasn’t made it public.  Of course, it appears they still haven’t told Gelber or his lawyer… or perhaps they did, privately, after the case had gone to trial.

The university claims Gelber’s opinions on DEI were not the real problem, that Gelber was “intolerant of opposing opinions, disruptive, uncooperative and demeaning of faculty and staff members.”  These protests to the contrary notwithstanding, it appears that Gelber’s outspoken criticism of ONU’s DEI policies, which, as we know, came down from the mountaintop with Moses, was at the center of complaints.  (Again, even if those accusations of intolerance, etc., are true, marching the guy out of his classroom and denying due process is certainly not ethical and probably not legal.)

DEI policies, run correctly, search out qualified people from certain demographics.  They get some small preference, all other things being equal.  (Veterans get even more of an advantage at state schools in Texas.)  Straight white guys still get the job if they’re clearly the best person for the job.  Of course, inevitably, that “all other things being equal” part sometimes fades away, and a demonstrably less qualified candidate is selected.  That, say proponents, is precisely what happened for decades, just in the other direction.  This is where we avoid that issue and remind you, Gentle Reader, that this is more about Gelber’s First Amendment rights and ONU’s procedures, not the legitimacy of their concerns.

Show that Gelber discriminates against the kind of people who might benefit from a DEI initiative, and there’s a case.  Even then, there’s no apparent reason to attempt to embarrass him in front of his students or to not even tell him what he’s supposedly done to precipitate this situation.  FIRE (the Federation for Individual Rights and Expression), as well as Gerber’s attorney (obviously) tried repeatedly to get ONU to specify what he had done to merit this response.  The university blithely ignored those requests.

Attempting to fire Gelber for expressing his political views (which university officials knew about when they hired him and when they granted him tenure) without presenting literally any actual evidence and without allowing him due process, perpetrates a greater injustice than what they’re accusing him of. 

Anyway, Gelber sued.  It may or may not have been a good idea to hire America First Legal as his representatives.  As you probably guessed from their name, Gentle Reader, they’re primarily interested in right-wing causes.  That offers the advantage that they’d be particularly zealous about Gelber’s cause.  The downside is the temptation to make the case about what he said or did instead of the more compelling argument about the procedures the university followed.

The university tried to obtain a summary judgment to quash the suit.  They were partially successful, knocking out a couple of the counts of Gelber’s suit.  Other parts of the suit were allowed to go forward, however, with the judge declaring that ONU’s “lack of regard for particularity is either naive or a callous disregard for due process.”  But that ruling happened last September.  Why write about it now?

We turn to the headline on FIRE’s follow-up story, published last week: “Ohio Northern sues professor for having the audacity to defend his rights in court.”  Ouch!  Anyway, here’s the key paragraph:

But for defending his rights in state court, ONU sued Gerber in federal court on Jan. 20, claiming Gerber’s “perverted” lawsuit is apparently an “attempt to accomplish . . . personal vendettas” and “unleashing political retribution” against ONU — notwithstanding the state court holding Gerber’s claims warranted proceeding to a jury. ONU’s suit claims Gerber’s “true goal is to manufacture outrage, to influence political retribution, and to extract vengeance against” ONU. According to the lawsuit, Gerber’s attempt to hold the university to its own policies is an unlawful “abuse of process.” 

Oh, bloody hell.  FIRE’s Zach Greenberg calls ONU’s suit a SLAPP (strategic lawsuit against public participation), an all too common practice by litigants who don’t have much of a case, but who think they can outlast their opponents because their pockets are deeper.  Curmie is tempted to agree.

About the only thing no one can dispute here is that Scott Gerber is a controversial teacher.  It’s admittedly a small sample size, but the fact that of 13 respondents on the Rate My Professors site, 11 rated him either “awesome” (the highest ranking) or “awful” (the lowest ranking) sort of says it all.  Curmie has literally never seen anything like that inverse bell curve.  It certainly does make one suspect that Gerber’s politics play a role in students’ responses to his courses.

So… where are we?  The chances that Gerber did something that should get him fired: possible.  Chances that Gerber is an asshole: quite likely.  Chances that ONU violated their own policies, denied due process, and damned well ought to be humiliated and forced to cough up major moolah: bordering on ontological certitude.

Free Porn Online... and the First Amendment

Curmie has decided not to write about Donald Trump or Elon Musk (has there ever been a better name for a Bond villain?) except in passing.  He’ll still post articles, memes, and cartoons on his Facebook and Bluesky pages, but he’s going to protect his mental health by not bothering to spend 1000 or 1500 words arguing that this or that action by those two sociopaths is illegal, mendacious, hypocritical, moronic, xenophobic, plutocratic, or intentionally cruel.  It would be newsworthy if either of them ever did anything that didn’t fall into at least a couple of those categories.  So Curmie is going to write about other things.

So, here we go…

Thirty-something years ago, when Curmie was new to the PhD program at the University of Kansas, his mentor, the inimitable Ron Willis, urged him to find something outside the theatre program to keep him from living in the theatre building or the library.  Ron suggested Audio Reader, a service providing access to written material for the visually impaired.

Curmie thought that such a volunteer gig might make sense, and arranged for an audition, which included reading aloud from a variety of sources.  The only specific I remember was that there was an article about the Kansas City Royals; Curmie remembers smiling at the fact that he was enough of a baseball fan to know how to pronounce the name of one of the Royals’ starting pitchers, Mark Gubicza.

Anyway, I got the gig, and began a weekly stint recording a section of the Kansas City Star.  My schedule varied from semester to semester; at one time or another I read from the front page (all stories that started there), nation & world (everything from the news section that didn’t start on the front page), and columns & editorials.  I filled in once or twice on sports when the regular person was ill or out of town.  There were enough volunteers that we had the entire Star, even the classified ads (!), uploaded to the system by 9 a.m. every day.

I’d been at Audio Reader for a few months when I got a call from the volunteer coordinator.  She seemed hesitant, but asked me if I meant it when I said on my audition form that I’d read anything.  I said I did.  So… one of the guys who’d been doing the Adult Magazine Hour had taken a job out of town, so they needed to find someone else to do a monthly hour-long show, reading from Penthouse.  See, someone did care about the articles!

I was pleased to find out that although I was expected to describe all the photographs that accompanied news stories in the Star, I needn’t do that with Penthouse.  Oh, and I should use an alias.   I was also lucky that the other guy reading Penthouse really liked the smuttier stuff, so I could concentrate (mostly) on articles, which really did include the occasional good piece of investigative reporting. 

But the once-a-month thing was based on there being four weekends a month, and sometimes there were five.  There is only so much material that can be coaxed from an issue of Penthouse or Playboy (there were two “women’s magazines” in the rotation, as well).  That meant I got a second show some months.  Audio Reader had subscriptions to the mags we read every month, but the poor volunteer coordinator had to visit the local porno emporium, hold her nose, and purchase… well, something those months.

I used to joke that one does not truly appreciate the literary merit of Penthouse until one has to read aloud for 56-58 minutes from a magazine called (and I’m not making this up) Wet or Butts and Boobs Monthly.

Another year or two later, Curmie gave a conference paper on the press coverage of the Communications Decency Act, which was intended to keep pornographic materials out of the hands of kids.  Despite broad-based and bipartisan support in Congress and from then-President Clinton, the CDA was struck down by a unanimous Supreme Court, who ruled in Reno v. ACLU that it was an unconstitutional abridgement of First Amendment rights.

Of course, in those days the allure of online porn was limited by the available technology.  Most people’s internet access was through dial-up, and it would take a couple of minutes to see a still photograph.  Now, you can access an hour-long video in an instant.  So shutting off hard copies of magazines doesn’t solve the problem of allowing access to minors, many of whom have better technical skills than you or I, Gentle Reader.  Demand has changed significantly. Unsurprisingly, companies like PornHub are now worth well into ten figures, whereas Curmie had to check to see if Penthouse still exists.  (It does.)

So we jump forward a couple of decades from when Curmie moved to Texas and therefore stopped volunteering with Audio Reader (he still sends a little money their way).  Curmie became dimly aware that in June of 2023 Texas Governor Greg Abbott signed House Bill 1181, which required pornsites to “use reasonable age verification methods” to “verify that an individual attempting to access the material is 18 years of age or older.”  The law also required websites to “display health warnings about the effects of the consumption of pornography.”

Aylo, the parent company of Pornhub, YouPorn and Brazzers, did not comply, and they were sued by Abbott’s minion accused felon Attorney General Ken Paxton.  And then there was a counter-suit, claiming violation of First Amendment rights.  Lather, rinse, repeat.  The Fifth Circuit, which is generally roughly as civil libertarian as the KGB, voted 2-1 to uphold the age identification requirement but to scuttle the health warning.

Aylo appealed to the Supreme Court while blocking access to its sites in Texas.  Instead, users saw a message stating that the company would comply with the law, but arguing:

Attempting to mandate age verification without any means to enforce at scale gives platforms the choice to comply or not, leaving hundreds of thousands of websites open and accessible. As we’ve seen in other states, such bills have failed to protect minors, by driving users from those few websites which comply, to the hundreds of thousands of websites with far fewer safety measures in place, which do not comply.

Curmie, being Curmie, wondered whether this argument holds up, decided to test it.  It took him less than a minute to find a site with apparently thousands of videos, live feeds, “chat rooms,” etc., readily accessible from Chez Curmie in Texas.  And if Curmie can do that, you can bet the ranch that pervy high school sophomore can do so, as well.  It does indeed appear that sites willing to obey the law are being punished relative to those that flout it.  The question of selective (or, at best, random) enforcement is real.

That still doesn’t solve the problem, of course.  Curmie won’t claim to understand the various means of age verification and their relative effectiveness or intrusiveness.  What doesn’t seem to be in question, at least ostensibly, is that some sort of gatekeeping would be a good idea.  So we’re really talking about technical details, not philosophies.  (Curmie does note the distinct possibility that Abbott and his ilk would very much like to shut down access to adults as well as to minors, but of course none of these folks would actually admit that this legislation is intended to be the thin edge of the wedge.)  There’s a good overview of the various to-ings and fro-ings by Marc Novicoff of The Atlantic here.

Anyway, Curmie, not being a devotee of PornHub’s services, confesses he’d pretty much forgotten about the whole business until a couple of weeks ago when Justice Alito made headlines by inquiring, obviously mockingly, if PornHub is “like the old Playboy magazine, you have essays there by the modern day equivalent of Gore Vidal and William F. Buckley Jr.?” 

A handful of left-leaning sites tried to suggest that the question shows the 74-year-old Alito to be out of touch with reality.  Curmie is no fan of Alito, whom he suspects may well be past his sell-by date, but this question was indeed directly on point, because he knew the answer.  Some of those mags from yesteryear did indeed have things to offer other than photos of attractive young women in various states of undress.  Lawyers for Aylo had to admit that, no, there’s nothing equivalent on their site.

So where does all this leave us?  Well, FIRE, the best-known of the free speech advocacy organizations, has been all over this case since SCOTUS agreed to hear it.  The entire post is worth reading, but here’s a brief sample:

The problem with age-verification laws is they place a burden on every consumer — adults included — to access constitutionally protected speech. And verifying your age online is a different animal from simply flashing a driver’s license to someone behind a counter. It usually means handing over your government ID for a platform or verification service to copy, entering the last four digits of your Social Security number, or even submitting to biometric facial scanning…. 

[The Fifth Circuit decision] ”ignores the district court’s finding that the Texas law is “unreasonably intrusive in its use of age verification” because, according to Texas’ own expert, there were “several ways that age-verification can be less restrictive and costly” than the Texas law requires….

Most recently, in Free Speech Coalition v. Rokita (2024), an Indiana district court… explained that strict scrutiny must apply to the age-verification law because, for example, Indiana’s law (like the Texas law) applies to websites that have 33.4% or more sexual content. In other words, age verification would apply even to “adults attempting to access material perfectly appropriate for minors” and “even when the majority of a website contains entirely acceptable, and constitutionally protected, material....

The hope, of course, is that the Court — unlike the Fifth Circuit — follows its internet speech precedents safeguarding adult free speech rights.

Still, the prediction is that this particular SCOTUS is likely to uphold the Texas law and extend (or at least allow the extension of) similar restrictions elsewhere.  Caught up in the legalese, the technical arguments, and the legitimate and appropriate desire to keep obscene content out of the hands of minors are two simple questions: does the Texas law do what its supporters say it does, and does it do so in the least intrusive manner possible?

The answer to both of these questions is an incontrovertible “no.”  QED.