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May 4, 2023

"Law and Order: The Timing of Mitigating Evidence Affects Punishment Decisions"

The title of this post is the title of this paper now available via SSR authored by Emily Conder, Christopher Brett Jaeger and Jonathan Lane. Here is its abstract:

When we hear about a transgression, we may consider whether the perpetrator’s individual circumstances make their transgression more understandable or excusable.  Mitigating circumstances may reduce the severity of punishment that is deemed appropriate, both intuitively and legally.  But importantly, in courts of public opinion and of law, mitigating information is typically presented only after information about a perpetrator’s transgression.  We explore whether this sequence influences the force of mitigating evidence.

Specifically, in two studies, we examined whether presenting evidence about a perpetrator’s background before or after evidence of their violation influenced how severely U.S. participants punished perpetrators.  In Study 1 (N=132), evidence about the perpetrator’s mitigating circumstances reduced punishment only when it was presented before evidence about the perpetrator’s violation.  Study 2 (N=316) additionally revealed this moderating effect of presentation order across a variety of premeditated and impulsive violations.  These findings are consistent with person-centered theories of punishment and with the Story Model of adjudication.

May 4, 2023 at 06:34 PM | Permalink


Nice job, Doug, contributing to the 30% of cases of schizophrenia in young men. We are in a mental health crisis partly created by marijuana use.


Posted by: TarlsQtr | May 5, 2023 4:23:56 PM

Freedom sure can cause lots of problems, so are you against all freedoms or just some? Nearly half of all kids have obesity problems, so are you eager to criminalize donuts? My sense is that phones/internet time is even worse for young people's mental health, so do you want to criminalize the internet?

As the Shafer Commission stressed 50+ years ago, criminalization does unique government-imposed harms (and those harms are inequitably distributed). Cannabis used irresponsibly certainly can produce all sorts of harms, like many other comsumer goods, but I do not think criminalization is a wise or just way to seek to combat those harms.

P.S. The study you reference involved Danes aged 16–49 at some point during the periods from 1972–2021. I am pretty sure Danish young people in the 20th century were not too influenced by my 21st century advocacy against marijuana prohibition. But maybe I have great powers beyond my wild imagination.

Posted by: Doug B | May 5, 2023 5:05:16 PM


Your logic is that there are a million things that cause harm, so nothing should be criminalized. That’s nuts. We both know that if 30% of schizophrenia cases in young men were caused by Cheerios, it would be removed immediately.

As I have been telling you for years, criminalizing something is much more difficult than decriminalizing. Once Pandora’s box is open, it’s almost impossible to close. We can’t criminalize Doritos, but we could have kept marijuana criminalized. It’s always been a perfectionist fallacy that because we cannot completely stop the use, it’s not working and criminalization should cease.

Have you been to Denver? NYC? Both cities reek of it. Does society benefit from that?

Nor are we even getting many of the benefits you promised, such as a lack of black markets, police not being needed, safer pot, and tax income.

The black markets still exist with California, for example, having its own task force to close down unlicensed pot farms. People are still buying pot laced with dangerous chemicals. We are receiving few of the “benefits” you promised with all of the downside I predicted.

Posted by: TarlsQtr | May 5, 2023 5:31:06 PM

You are right, Master Tarls, that I do not want everything that can lead some people to harm themselves to be criminalized by the state. Because I believe in personal freedom and the harm principle, I generally do not not want a product that many millions can and do use safely (and sometimes as a substitute for more dangerous drugs) to be criminized even when public health research shows excessive use by some may increase self-infliced harms. (In the US, alcohol use is the fourth leading cause of deaths, and the Danish study noted that roughly 7 times as many people had alcohol use disorder as had cannabis use disorder (CUD), and other sustance use disorder was at 3-4 times the rate of cannabis use disorder. Also, if I am reading the data right, a tiny percentage of Danes had CUD, less than 1%. Misuse of alcohol, tobacco and fatty foods are at a much higher rate in most western societies.)

Society benefits in so many ways from human freedom, and a committment to human freedom comes with all sorts of serious risks and potential harms to public health. Increased human freedom and the reduction of government intrusion into private affairs is the benefit that I focus upon in this setting. If someone does not value human freedom, and/or generally trusts the government to curtail freedom based on bureaucratic conclusions about when the risks of human freedom are too great, then all sort of criminal prohibitions may seem worthwhile. But conceptually and practically, I wish to place a very significant burden on the government to criminalize people from consuming products or engaging in certain activities that do not directly harm others.

Marijuana reform has had the benefits of producing well over $20 billion in state tax revenues, about a half-million jobs in a new industry, and far less hypocrisy and inequality in the application of our criminal laws. But, again, human freedom is the less tangible benefit that primarily drives my support for reform. And I hope that ending adult-use prohibitions, still the law of the land federally and in the majority of states, will help reduce the illicit market and its myriad harms you mention. Perhaps you will join me in supporting the end of federal marijuana prohibition with, say, a 10-year sunset provision? If we completely end prohibition and things are not better, prohibition can kick back into place.

Posted by: Doug B | May 5, 2023 6:19:23 PM

TarlsQtr: You'll no doubt be pleased that I have chosen never to use marijuana, alcohol, tobacco, or any illegal drug. But I've decided this only for myself. Even if I were arrogant enough to believe that I knew better than everyone else what was best for them, and that I should have the power to make that decision for them, and that drug users deserve every bad thing that happens to them, I would still favor legalizing all drugs, as I observe that vast numbers of completely uninvolved people get caught up in the War on Drugs, with countless wrong-address midnight raids that end with cops and homeowners getting in shootouts and ending up crippled or dead. One such raid on an innocent family is far too many.

Posted by: Keith Lynch | May 6, 2023 3:48:32 PM

Doug --

The argument that "human freedom is the foremost virtue" is quite appealing. The problem is that it proves too much. It simply walks past having to think about what freedom-generated harms are more than society should sensibly tolerate. If freedom trumped everything, we'd eliminate prison altogether. But no one except nutjobs and the HLR wants to do that.

The realistic question for adults is where to draw the line, not whether to draw it at all. In the drug debate, we've largely drawn it here: Little to no prison for pot except for trafficking and very large amounts, but prison for the dreadful and lethal stuff like fentanyl, meth and LSD. This remains the consensus among both conservatives and liberals after more than 50 years of debate about it.

Simply to say that the huge majority who agree with this consensus are "statists" -- a term you fling around carelessly (and often at me) -- just doesn't advance any worthwhile debate. Unless you believe in entirely dismantling state power, which you don't and couldn't, then you too are a form of "statist," no? I mean, what's the alternative? Being a "jungleist"?

The state and state power came to exist in civilized life for a reason. They can be and have been abused, you bet, but overall the human race has concluded for very good reason that they're better than the Hobbesian alternative.

Are you being a statist when you approve of the state's incarcerating people who rape children? Who do armed robbery? Who kill witnesses, policemen and judges? Are you being a statist when you approve of the state's executing truly grotesque murderers (which you (very quietly) do)?

C'mon. To paraphrase Justice Kagan, we're all statists now. The question is how much and under what circumstances, not whether the state can EVER trench on human freedom.

Do you disagree?

Posted by: Bill Otis | May 7, 2023 10:32:15 AM

Well, I'm reading this while I'm watching an interview with Phillip K Howard on Book TV. It's dangerous - I think I've entered a state of cognitive dissonance.

Posted by: beth curtis | May 7, 2023 3:10:50 PM

Bill, I generally subscribe to JS Mills' harm principle, which he articulated this way: "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." I would nuance this principles in various small ways in the US political system; also "harm to others" is a contestable term, and one that will always be subject to much debate even among those who adopt the harm principle wholesale.

Helpfully, that principle make state punishment for killing, raping, robbing quite easy to justify. But that principle makes state punishment for growing and consuming a plant much, much harder.

Posted by: Doug B | May 7, 2023 5:51:06 PM

To Mr. Tarls:

In the "study" (for which you have posted the link on Yahoo), it states:

"Scientists estimate that as many as a third of cases of schizophrenia among men aged 21-30 might have been prevented by averting cannabis use disorder".

A whole lot of conditional caveats there, no?

The scientists "ESTIMATE as many as 1/3rd of cases....MIGHT have been prevented..by preventing CANNABIS USE DISORDER". Cannabis Use Disorder is present in approx. 10% of those using the substance. So 1/3rd of 10% equates to what? 3.3%? Yes?

see: (https://www.yalemedicine.org/conditions/marijuana-use-disorder#:~:text=What%20are%20the%20risk%20factors,meet%20the%20criteria%20for%20addiction).

So your linked study is hardly persuasive and convincing evidence in the campaign to continue the criminalization of cannabis. Perhaps you should trot out that old, tired bromide: "If this helps to stop JUST ONE CASE of schizophrenia, it's all worth it!". ??

It is common knowledge that genetics play a signficant role in the onset of schizophrenia. And yes, the onset of the disorder is SOMETIMES, but not ALWAYS, exacerbated by the PROLOGNED USE of cannabis, with many other factors POSSIBLY contributing thereto. These other factors MAY include, and are not limited to: duration and frequency of use; potency of the drug; mental, emotional and physical pre-conditions (e.g., fatigue, stress, depression, anxiety, etc.); co-existing use of other drugs or chemicals (either medically prescribed or obtained illegally); alcohol use, etc.

To point the finger solely at cannabis is a bright red herring, Tarls. I know you're smarter than this.

This GOVERNMENT (NIH) study may very well be part of the government's campaign against the de-criminalization of cannabis and psychedelics. How else will those thousands of folks presently employed by the "prison-industrial complex" continue to make a living (and get those pensions) if not for the continuing criminalization of sooo many activities?

By the way, the movie 'Reefer Madness' was NOT a documentary.

Posted by: SG | May 7, 2023 9:08:39 PM


Your most recent post to Bill doesn’t really address the problem. You mention “harm to others.” Should driving 150mph on the highway while drunk be legal as long as you don’t hit and harm someone else?

Posted by: TarlsQtr | May 7, 2023 10:03:37 PM


Every study comes with caveats. It’s the nature of science. However, there are now numerous studies that show the same link. It’s like you can ignore that human life begins at conception, but it still does. Same as the link between pot and schizophrenia.

And whether pot is the complete cause of schizophrenia or triggers a genetic defect, the result is the same.

Your problem, when dealing with me, is saying that children have the same right to make a decision as adults.

Just as we don’t let children make the decision to mutilate their genitals…er, um, oops. Just as children have to be 16 to drive, society makes choices for their general well-being. Putting more pot on the streets, implying that it is safe and ok to do via government imprimatur, and making it more accessible to them is a terrible policy.

Posted by: TarlsQtr | May 7, 2023 10:15:30 PM

Keith Lynch,

So should we stop search warrants for murderers because, “One such raid on an innocent family is one too many?.”

Posted by: TarlsQtr | May 7, 2023 10:18:50 PM


You wrote: "Your problem, when dealing with me, is saying that children have the same right to make a decision as adults".

Please direct me to that part where I advocated for the use of cannabis by minors. Thanks.

Posted by: SG | May 8, 2023 3:08:03 AM

Master Tarls: as I mentioned, "harm to others" is a contestable term, and one rightly subject to debate. Imposing extreme/unreasonable risk of harm upon others is, in my view, within the ambit of "harm to others" subject to legitimate state power. So reasonable restrictions and regulations on dangerous driving and dangerous weapons and dangerous drugs (and on the age at which people can drive and buy guns and drugs) all seem to be legitimate exercises of state power.

But the more unclear/contestable the risk and the more significant the exercise of state power (criminal v. civil sanctions), the more we slide toward statism and away from (classical) liberalism in our political commitments and practices. If we prohibit speech or ban books because some claim these risk hurting feelings, we are a less liberal state. If/when we start criminally prohibting adults having a single beer and then driving more than 25 MPH, we are a less liberal state. (When we prohibited alcohol altogether, we were a less liberal state.) If we prohibited all firearm access, as some wish to do, we would be a less liberal state. If we kept requiring everyone to wear masks in all public settings, we would be a less liberal state. Even worse, as I see it, is having the state (unequally) saddling people with criminal history that can impact their lives forever if/when they get prosecuted for doing not-clearly-risky behaviors. Use of state CRIMINAL powers to regulate small risks, as I see it, always should require greater justification and always should be scrutinized and rescrutinized.

These matters certainly can be (and are) debated in the particulars -- eg, should all prescription opioids or high-capacity magazines be taken off the market because of risks of deadly misuse. What does not seem debatable is the risk of growing state power generally in conjuction with growing state power to control personal consumption. It is not coincidental that the New Deal follows Prohibition; that historic growth of the federal administrative state and federal debt follows the "war on drugs." Because the lure of statism for folks across the political spectrum always seems dangerously strong --- history and modern moments show this in many ways --- I am always going to want to err on the side of (classical) liberalism in our political commitments and practices.

Posted by: Doug B | May 8, 2023 8:24:08 AM


By advocating for pot legalization, you are making it more readily available to kids. More of them absolutely will make that decision.

Posted by: TarlsQtr | May 8, 2023 10:41:12 AM


Your line sure is arbitrary, coincidentally, right where your preferred policies sit.

I’m reminded of the old saying, “Everyone going three MPH slower than me is driving like a grandma. Everyone going three MPH faster is a lunatic.”

It’s easy to make the case that smoking weed, especially younger men, is like driving 150 MPH from my previous example. You may hit and kill someone, but you might not. You might get schizophrenia, but you might not.

I’d like to drive fast. You must be a “statist.”

Posted by: TarlsQtr | May 8, 2023 10:49:28 AM

All policy-making line drawing involves some measure of seemingly arbitrary ... line drawing. And I readily concede some may view personal marijuana use as more dangerous than driving 150 MPH and may think the freedom to drive that fast is more important than the freedom to use cannabis. But, even in this context, I would think the right analogy would be: driving = medical cannabis use; driving fast = recreational use; prohibiting cars to reduce carbon footprints = prohibiting canabis to reduce public health problems.

Would disagree with me that it would be "statist" to criminally prohibit all auto driving (to save live from accidents now and to save the planet later)?

Posted by: Doug B | May 8, 2023 1:49:00 PM


The difference is that autos are a great benefit to society.

Posted by: TarlsQtr | May 8, 2023 2:43:35 PM

The Framers did great without autos, as have humans for most of history. And, beyond the million+ killed by cars worldwide each year, cars contribute to climate change which could lead to the end of all humans. You (and I) surely think the benefits of cars outweigh their harms/risks, but others may reasonably see differently (https://jalopnik.com/what-i-mean-when-i-say-ban-cars-1849122955_.

Likewise, many see te benefits of cannabis use outweigh harms/risks, but many others may reasonably see differently. These are policy judgments that call for line-drawing, and I am always going to have my affinity for human freedom play a significant role in the line-drawing efforts. Your mileage may vary.

Posted by: Doug B | May 8, 2023 9:04:06 PM


That the founders did without them doesn’t make them any less a benefit to society. That’s really weak tea.

There is no modern economy without the ICE. The entire world is a third world country without it.

Yes, some loons worry about climate change. So? We could eliminate every car in the US and have little to no impact on Marxism…I mean global warming.

The benefits of pot are tenuous at best and nowhere near outweigh the negatives in real world consequences. Your discussion of freedom as a benefit is purely subjective and not capable of being measured. We know kids will smoke more pot and get schizophrenia from it. Lost productivity, gateway to harder drugs, etc.

Posted by: TarlsQtr | May 8, 2023 9:22:37 PM


Even the climate socialists don’t believe the “world is coming to an end,” nonsense.

They all have laptops, iPhones, and know that the mining and construction of the needed materials to build windmills and batteries are mined by slave labor in a manner that’s terrible for the planet.

Nor do they support the tried and true power source we already have developed, nuclear energy.

Posted by: TarlsQtr | May 8, 2023 9:29:00 PM

Yep, it's hard to quantify the value of human freedom, and that's why many have often been so willing to give it away for all sort of reasons in all sorts of settings. History is full of folks readily embracing statist regimes built on claims the public good must trump individual freedoms. That history makes me much less eager than you to denigrate "freedom as a benefit" in any context.

If you see little or no benefit in human freedom, Master Tarls, and also see little or no benefit in allowing humans to chose how to pursue personal pleasure, then I suppose you might advocate criminal prohibition of lots of (risky) pleasure-seeking activities --- eg, drinking alcohol, using tobacco, possessing firearms, non-procreative sex, eating food high in fat and/or sugar, gambling, trampolines, fireworks, scuba diving, horseback riding, deep-frying turkeys and on and on and on. If one does not see broad benefits from human freedoms, it can be easy to build arguments that the potential negative consequences of all these activities (and many more) outweigh their "tenuous" benefits.

In the end, it seems you do not value a freedom you do not wish to exercise. Such thinking contributes to why so many have been so willing to give up freedoms. But that is why I err on the side of valuing human freedom (perhaps to a fault) --- I fear that far too many Americans, who should know better, are disturbingly content to question "freedom as a benefit."

That said, all sort of human freedoms --- free speech, freedom of religion, economic freedoms, and many more --- can be scary and dangerous. I suspect those too scared by, or too distrustful of, how humans use freedoms will continue to look to state actors to provide protection from freedoms' potent powers.

Posted by: Doug B | May 8, 2023 11:09:57 PM

Your schtick is tiresome and predictable.

Sure, Doug, everyone who disagrees with you is a “statist“and see “little or no benefit to human freedom.” Only an attorney could come up with such bullshit. You get to draw the arbitrary line and be damned if you are on the wrong side of it.

Again, if I believe we should have no speed limit and should be allowed to drive drunk, are you a statist? Hey, in most cases no one will be hurt and, after all, freedom. If not, you must believe only in freedoms you want.

If you have an actual argument, let me know.

Posted by: TarlsQtr | May 8, 2023 11:51:10 PM

Master Tarls, I am not damning anyone for having a different view of these matters. As I said before, these issues are rightly subject to debate, and I am just explaining how I come to my own views. I do not damn you or others for wanting to use state power to criminalize people for wanting to possess a plant for the sake of the public good nor others for wanting to criminalize possession of firearms or gas stoves or gas automobiles for the sake of the public good. But in these cases (and many others), advocates for state power are generally prioritizing other collective/societal interests over individual freedoms. That is just a description of reality, not a lawyerly argument. Indeed, as Bill put it, "we're all statists now."

In some settings, I will favor state power being used to advance collective/societal interests over individual freedoms. But, in those cases, I will recognize I am being more statist and less classically liberal. I use the term "statist" simply to mean advocating more state control over economic, political, and social affairs at the cost of individual liberty. So, whenever anyone (myself included) advocates for the state to have morecontrol over economic, political, and social affairs --- and especially when advocating for the state to use its most powerful hammer in the form of the criminal justice system --- the argument has "statist" import and impact.

I surmise you do not like the term statist because it is often associated with communist and authoritarian regimes. But that is exact why I use the term, to make sure we never lose sight of the fact that any and every use of state power to limit human freedoms, even when widely viewed as obviously justified by the public good, contributes to shifting and redefining the relationship between individuals and their governments.

Wonderfully, in America we are still free to speak our minds on these issues and disagree on how the balance of power ought to be struck in various settings. But at a time when even free speech is subject to statist attacks from both sides of the political aisle, I am ever more fearful that statist advocacy and thinking continues to be on the rise.

P.S. Here is a notable new piece from The New Republic headlined "Cars Are Deadly Weapons" and urging "commonsense reforms that might place limits on gargantuan cars" because "the types of cars first built to navigate foreign war zones encourage drivers to treat pedestrians like enemy combatants." https://newrepublic.com/article/172552/cars-deadly-weapons-brownsville

Posted by: Doug B | May 9, 2023 8:45:44 AM


Current examples of free speech being attacked on the right?

Not all arguments are equal. Talking about large vehicles encouraging drivers to treat others like “enemy combatants,” doesn’t even pass the sniff test.

Posted by: TarlsQtr | May 9, 2023 12:16:50 PM

Kevin Sabet has long played loose with data, and many of his prohibitionist arguments are anti-capitalist. I do think his concerns with high THC products are quite sound, and I fully expect there to be continued and varied public health issues with marijuana reform. But even his group recognizes "We shouldn’t give marijuana users criminal records," and I would generally be content with the marijuana decriminalization reforms that Sabet sometimes appears to support.

As for examples of the right going after various forms of speech and expression:

Posted by: Doug B | May 9, 2023 1:31:31 PM

There have been thousands of studies about the relationship between marijuana and schizophrenia. Among them is the Harvard study by John Grohol that shows there is no relationship. There are also thousands of studies about the relationship between alcohol use and schizophrenia.

We are a nation of studies. The subject of them is closely related to laws and regulations that are being considered that have an economic impact on some segment of society. This is essentially how they are paid for. It looks like John Grohol is now studying the relationship between behavior and internet usage. Go figure.

An alcoholic will get in his/her car and speed - get home a abuse the family. A marijuana user will drive slowly, pull over and take a nap or go home and listen to music. Don't take this literally.

We are awash with regulation and law. It is remarkable how many things you can't pursue without permission. Just because you don't like a behavior or can't monetize it is not a good justification for a regulation or law that prohibits it. We need some freedom.

Posted by: beth curtis | May 9, 2023 3:26:34 PM

Tarls wrote the following, when challenged on his prior wacky statements:

"By advocating for pot legalization, you are making it more readily available to kids. More of them absolutely will make that decision [i.e., to use marijuana]."

TARLS: Does your argument not apply to ALCOHOL and GUNS as well? And what about books (on CRT or Rosa Parks?), television (MTV, Jerry Springer, MSNBC?), and the internet (TikTok, Facebook and Sentencing Typepad?)

Tarls, are you not saying that the continued legalization of these materials (alcohol, guns) and access to social media will NOT lead minors to engage in such 'evil, evil behaviors'? Are you saying that minors will only use marijuana but not these others? How strange.

Posted by: SG | May 9, 2023 5:03:21 PM


Sabet is quoting the work of others.

Nonsense. Keeping drag shows out of places where children congregate is not “anti-free speech.” Nor is keeping such content out of school libraries a “ban.” It’s the typical leftist “change the meaning of words,” charade.

No one is banning drag shows in appropriate settings. We have been limiting content in school libraries forever. I never once had the opportunity to get pornography in my elementary school library but they remained for sale to adults. We aren’t outlawing (banning) books.

Posted by: TarlsQtr | May 9, 2023 5:22:43 PM


It is strange, because I never said it. I’m over here. Debate me and not your straw man.

I have spoken with Doug ad nauseum about this. I readily concede that point.

The things you mention have been part of the American experience for decades and even centuries (not to mention, most aren’t analogous). It’s much, much more difficult to criminalize something than decriminalize. Once decriminalized, it’s almost impossible to go back.

Posted by: TarlsQtr | May 9, 2023 5:30:52 PM

I do not follow free speech issues closely, but I can still readily list recent GOP efforts to have the state control more individual/private expression: new laws in Texas and Florida requiring private media companies to moderate their platform according to government rules; a GOP bill in Florida to require certain bloggers to register with the state; the Tennessee law on "adult cabaret" which I believe applies to all public performances; many other GOP-driven proposals for all sorts of educational restrictions and/or teacher monitoring (including college instrutors).

Some of this is bluster and minor cuts to free expression, but it all has chilling effects as state control/threats grow --- eg, there's already robust discussion about how an Ohio bill to regulate speech in public colleges could impact instruction --- and it all undermines a robust culture of free speech. Thwse developments drive my statement about "free speech being subject to statist attacks from both sides of the political aisle." Put simply, lots of bills/laws seeking state control/influence on expression undercuts the "free" in "free speech," though many folks likely only care about promoting their speech, rather than free speech. Yet another setting in which people often do not value a freedom that they do not wish to exercise.

Posted by: Doug B | May 9, 2023 6:27:35 PM


I have not heard of your first example, the blogger bill was put forth by a single representative and got criticism on both sides of the aisle, and the Tennessee law restricts where it may occur, not what is in them.

The Florida education bills are nothing new. Just as school libraries have always been limited in what could be in them, there have been limits to what publicly funded institutions can teach. None of those are “bans.” Students can find hundreds of colleges to teach that pseudo intellectual CRT bull****.

Posted by: TarlsQtr | May 9, 2023 9:24:58 PM


OK, I found an article about your first example. Although ill-conceived, it’s actually meant to stop censorship.

Posted by: TarlsQtr | May 9, 2023 9:30:32 PM

Significantly regulating expression (and what can/must be taught to adults in college) is a blow to free speech even absent all-out bans. And that you defend or discount various efforts by state actors to control speech, Master Tarls, reinforces my sense that you are generally content to prioritize other collective societal values over private individual freedoms far more than I am.

There is, of course, a wide range of reasonable differences in policy opinions about how much power the state should have over how private actors can express themselves and live their lives. As I explained before, I am always inclined to err on the side of (classical) liberalism in our political commitments and practices.

But I recognize lots of people across the political spectrum are going to often be much more inclined to trust and support more and more state power for a wide variety of reasons. But the very reality that there are (ever-growing) modern statist tendencies across the political spectrum in so many settings inclines me to keep advocating for the value of human freedom in all settings.

Posted by: Doug B | May 10, 2023 8:42:38 AM


Are you telling me you can teach whatever you want at OSU or do all new classes have to get approved by the proper people? Does OSU not believe in free speech or could it possibly be that they don’t consider some topics to be worthy of a respected institution?

For example, could you teach a, “How to beat pedo charges,” class?

Public institutions take public money and the public has every right to have a say regarding what is being taught. It’s quality control, not an attack on free speech, and I am a person who will generally error on the free speech side.

Posted by: TarlsQtr | May 11, 2023 3:39:20 PM

Master Tarls, the "proper people" approving courses now are other academics, not elected politicians who often have little or no knowledge of various academic fields or educational realities. Here is a FIRE acticle from a few years ago reviewing just some of state legislative efforts to restrict academic freedom: https://www.thefire.org/news/state-legislatures-continue-efforts-restrict-academic-freedom. It highlights efforts to preclude teaching of "divisive concepts," which would arguable preclude law professors from teaching most of criminal law (especially topics like the death penalty and marijuana reform).

Of course, state legislature can and should have a right to have a say in the operation of public universities. But the more they dictate and micromanage what can be said in the classroom -- or even threaten to do so without concern for academic freedom -- the less freedom of speech there will be in the classroom. And, of course, this is just one of multiple ways legislators on both sides of the aisle are seeking to control all sort of social discourse.

If you cannot see or are not troubled by the various ways in which free speech is being subject to statist attacks from both sides of the political aisle, then you clearly are placing other values above free speech values. Fine; as I said before, there are lots of sound policy arguments in lots of settings for putting other values above human freedom, and many people of all political stripes are drawn to embracing those arguments (specially when they do not care for the freedom being exercised by others). For me, whether the issue is drug policy or speech codes, I generally give considerably more weight to the freedom side of the balance of values.

Posted by: Doug B | May 11, 2023 4:08:56 PM


So academia is accountable to itself! What could go wrong? Actually, we are seeing how it is working.

Conservative speakers assaulted and shouted down all over the country. Federal judges getting excoriated by the free speech pioneers in the DEI faculty. At least the law school graduates at CUNY were polite by just turning their backs on their left wing mayor for not being far enough on the left.

And disallowing the factually incorrect CRT being taught is not micromanaging. Just as not allowing that teaching gender is not binary or the world is 5000 years old is not micromanaging.

Divisive topics (abortion, drug policy) is free speech, but teaching against cold hard facts such as biology on the public’s dime is not.

Your entire “micromanaging” concept is quite funny. Who is being micromanaged? The purple haired alphabet lady professor who spends time telling her students how evil AmeriKKKa is or the professor on administrative leave because he handed out Jeremy’s Chocolates to students? (Started by Daily Wire co-founder Jeremy Boreing, they come in “He/His”, with nuts, and “She/Hers,” no nuts). Would Bill Otis be allowed to teach law at SFSU or would the administration, faculty, and students read that he once used the word “Oriental” or go through his record as an AUSA and try to tar and feather him? Are those last two not micromanaging?

Here it is bluntly. I am all in on free speech and would love for government to stay away from determining what schools teach, going after Disney, etc. However, I also believe in the MAD principle. I’m not going to play by the Marquess de Queensbury rules while the others get to punch me in the balls over and over again.

Posted by: TarlsQtr | May 13, 2023 8:40:57 PM

Master Tarls, it is very clear you dislike how various people/institutions are using their free speech/expression rights. And so you are seemingly now keen on the state being more involved in chilling/regulating/controlling in various settings the kinds of speech/expression you dislike so that people will be more likely to talk in ways and about topics more to your liking and more in keeping with what you believe advances the public good.

Okay, but do not deny or take umbrage at the statement of reality that free speech is now being subject to all sorts of statist attacks from both sides of the political aisle. Indeed, your last paragraph describes your view that because "others" are attacking free speech, you are eager to play by the same rules -- ie, to endorse efforts to control speech as means to fight with your political opponents.

Posted by: Doug B | May 14, 2023 9:14:16 AM

That reminds me of an old joke. An old Palestinian woman walks in front of an oncoming bus and a Jew pushes her out of the way. The next day’s headline: “Jew violently pushes old Palestinian woman to the ground.”

We didn’t start this fight. We didn’t want this fight. It is the left who overran our schools and turned them into indoctrination factories. It is the left who controls the media and acts as the Praetorian Guard for any left-wing Presidency. It is the left who controls the upper levels of the government bureaucracy acting as the militant wing of the Democratic Party. Biden used his “free speech” the other day to say that white supremacy is the largest terrorist threat to American democracy.

I’m not sure how you can imply any moral equivalency. At some point there needs to be pushback unless you have a better solution that does not include capitulating?

Posted by: TarlsQtr | May 14, 2023 11:21:07 AM

For me, Master Tarls, these matters are not about sides and (often short-sighted) views on (often contrived) left/right battles, it is about values. For me, human freedom is a uniquely important value (though not the only one), and I will always be disinclined to take a statist turn even when I fear, as I often do, that lots of individuals are doing lots of dumb things with their freedoms. So my "solution" is to keep advancing and advocating for the values that I consider important in my own small ways --- eg, allowing you to keep commenting behind a nom de plume --- not compromising those values because I worry about a particular "side" winning some supposed partisan "fight."

Posted by: Doug B | May 14, 2023 12:29:42 PM

That’s an easy statement to make when it is your side of the free speech assault on the offensive. Advocating for free speech is impossible when you are not allowed to speak.

You implying that this is an equal fight is risible. As far as sides, you have brought up “both sides of the political aisle,” many times, so your claim as the moderate non-partisan defender of free speech rings hollow.

One side began this fight. It’s why you don’t address my examples above. The free speech fights are being fought in academia, government bureaucracy, and the media. The right is in a position of power in exactly zero of those institutions. The far left will even eat their own if one has the temerity to conduct a town hall with the leading Republican candidate for POTUS. CNN is getting crushed by their own peers for “platforming” Trump. What does platforming mean? Letting him speak. You know, free speech. Something the media was supposed to be for. The Biden Admin is trying to get the NY Post thrown out of press briefings. Where is the outrage for one of their own? Democracy dies in darkness and all that.

Just curious. How many of your colleagues would you put in the Clarence Thomas or Antonin Scalia camp of judicial interpretation? No need to name names or say something that could get you in trouble with the free speech police. Just a number.

BTW, my nom de plume is because of backlash from government, academic, and corporate entities I work for and with if they know my views. It sure isn’t because I fear the right if I say I don’t like Donald Trump. Just as your tiptoeing around the previous DEI debate wasn’t because you feared Governor DeWine’s political machine rolling over you. It was the possible ramifications from your own colleagues if you spoke out. Yet, you all should police yourselves?


Posted by: TarlsQtr | May 14, 2023 1:50:33 PM

That you do not seem to recognize --- or just want to ignore --- hundreds of years of fights over free speech and free expression in the US (and elsewhere) largely explains why I do not engage facile assertions like "One side began this fight." (It is also facile to not recognize SCOTUS and state legislatures and local governments also are a profound part of the free speech landscape.) Moreover, that you are so eager to talk about "one side" and "your side" in this context highlights the kind of partisan poisoning that can undercuts broader values and the need for all Americans to pay serious homage to those values. I do not think compromising on those values serves to help return those values to the forefront; it seems to accellerate a race to the bottom.

It is sincerely a shame to hear that you fear "government, academic, and corporate entities [you] I work for and with" for shareing your true identies and views. That reality helps me better understand why you seem so eager to vent rage here. I hope you might someday find an environment to work in which you need not hide who you really are, though I know a lot of people thoughout history have had to spend much of their lives hiding who they are. My affinity for human freedom and free speech is largely driven by a belief that all humans should be able to be able to live as their true selves as they see fit.

Posted by: Doug B | May 14, 2023 3:34:02 PM


My refusing to put my name on something that could be used by employers and our clients is the opposite side of the same coin as you holding back what you think because your employer, colleagues, and students may come crashing down on you for it.

And of course free speech has been an issue on both sides since the inception of this country. However, this is different.

The right never held all of the levels of power (academia, the media, government bureaucracy) like the left has now. The left has, over the last decade, abandoned all principles of classical liberalism pertaining to speech.

We aren’t talking 100 years ago. Who is the biggest danger to free speech now, TODAY? I see the answer as obvious.

Posted by: TarlsQtr | May 14, 2023 4:15:05 PM

Master Tarls, I have no fear whatsoever that my "employer, colleagues, and students may come crashing down" on me for anything, nor do I ever hold back in expressing my views when I feel I am adequately informed to have a thoughtful position. (Geez, my Center is funded by the Charles Koch Foundation, the Menard Family, and the DeWine administration, among others. Cheering on, not "crashing down," is what I have received from my "employer, colleagues, and students." Here is a new CKF piece discussing our work with the DeWine Administration: https://charleskochfoundation.org/stories/osus-drug-enforcement-and-policy-center-improving-the-pardon-process-helps-individuals-communities-thrive/)

As for the the biggest danger to free speech, I think it is always a combination of intollerance, group think and statism. And many segments of the left, in the past and today, are prepared to mix these forces in an ugly stew to justify supressing speech and expression. But there are also some forces on the right, both past and present, that seem only to want to protect speech when it serves as a means to another end.

Meanwhile, I do what little I can here and elsewhere to "platform" everyone on their terms. Indeed, I'd love to get a chance to talk to former Prez Trump about criminal justice and sentencing issues in this space.

Posted by: Doug B | May 14, 2023 5:10:18 PM


You literally said you couldn’t talk about DEI hiring on another thread.

That said, your moral equivalency makes this entire discussion unproductive. Even the classical liberals such as Elon Musk, Bill Maher, and Alan Dershowitz see who is mainly intolerant towards speech these days.

There weren’t conservative employees working over at Twitter.

Posted by: TarlsQtr | May 14, 2023 8:37:12 PM

I said in the other thread that I considered it inappropriate to discuss individual hiring decisions --- but that's because I respect the expectations of confidentiality in hiring/tenure discussions, not because I fear that "employer, colleagues, and students may come crashing down" on me for any DEI discussion. And I have already said repeatedly here (and to many others) that I think DEI programs are problematically focused too much on race and not enough on on a host of other factors.

And I do not view various folks on the left and on the right to be morally equivalent though I do see each posing their own types of threat to free speech and various other freedoms. My views/beliefs on these matters are nuanced, but you seem eager to paint in stark terms. That may be a product of this forum, and it likely contributes to why this discussion is unlikely to be productive.

And Twitter is a private company, which I believe is soon to be hosting Tucker Carlson's show after Fox fired him.

Posted by: Doug B | May 14, 2023 9:38:46 PM


I also asked you about general hiring decisions in the DEI university programs. Silence. And why won’t you answer my question about how many of your colleagues subscribe to the Thomas or Scalia version of interpretation?

We weren’t talking about “various other freedoms.” We were talking about free speech.

Who, currently, is the biggest threat to free speech? It only requires a one word answer.

Finally, although Twitter is a private company it was acting as an agent of the state. Do you believe government coercing/working with private corporations to censor speech is OK because the corporation is “private” on paper?

I’m not sure why you bring up Tucker. Do you really think he would get a show on Twitter if Elon didn’t buy it? You act like nothing has happened between the Twitter Files and the offer to Tucker.

Posted by: TarlsQtr | May 15, 2023 3:27:59 PM

I am pretty certain I told you, Master Tarls, that I am not at all involved in the hiring of any DEI staff either at the College of Law or elsewhere in the University. All I would know about that hiring is what it made publicly available.

And, to clarify that I am not hiding anything or avoiding any discussion of the topics, you should know that faculty hiring always includes robust consideration of a robust array of factors --- who can teach required courses and subjects of greatest interest to students; a wide variety of professional and academic creditials (schools/degrees, work history, publications, etc.); recommendations from a variety of references; teaching evaluations if there is a teaching history, and many other factors.

Happy to answer your Thomas/Scalia question, though I am not sure if you are referencing originalism or other aspects of their jurisprudence. I am a advocate of originalism in some settings, but not others. I sense the same is true for a few of my colleague, but I also sense the vast majority of my colleagues reject originalism. More broadly, if you are just trying to ask if there are more folks on the left or right on my faculty, the vast majority are on the left. But I will add that, in 20+ years of helping with hiring in various ways, probably 80%+ of the applicants would appear on paper to be left of center. (And I should add that, on more than a few occassions thought the years, I have advocated that our commitment to diversity calls for more hiring of more conservatives on our faculty and elsewhere. Was that a evil DEI at work?)

As for Twitter, I was just making the point that free speech, when kept free, has a way of "regulating" itself. If the government is coercing private companies, that is a deeper 1A problem, and I am ever troubled by all the ways all sorts of government actors --- local, state, federal --- seek to interfere with free speech and expression.

Posted by: Doug B | May 15, 2023 4:21:40 PM

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