Lee Kovarsky Profile picture
Dec 6 8 tweets 2 min read Twitter logo Read on Twitter
NUANCE WARNING!

I'm pretty reluctant to weigh in here because of the ecosystemic climate for Jewish identity generally, but it seems like the outrage here is ... probably overdone and *certainly* rewarding bad faith actors.

Take Magill (Penn). She is asked DIRECTLY

1/
not about the constitution or her views, but about the status of genocidal speech *under the Penn speech code*. This is the same question that the MIT and Harvard Presidents got. Now actually look at the code. Here's the FAQ on hate speech for Penn: Image
I confess that I do not understand what answer other than *it depends* is reasonable and can be given in sworn testimony.

3/
The code literally says that hate speech is not punishable unless it "intentionally" provokes "a crowd" to "immediately carry out violent and unlawful action."

Look, fuck somebody that puts up a "kill the jews" poster on a lamppost - any lamppost!

4/
But it's *extremely* clear that this is not punishable under the Penn policy.

And this business about how speech is punishable when it "crosses into action" is not about when speech "crosses into genocide."

5/
That's bad-faith political bullshit by Stefanik. The reference to "crossing into action" is when otherwise abstract calls for genocide become targeted enough to constitute bullying or harassment.

6/
Look, I'm deeply sympathetic to the argument that campus speech practices are awful right now and that Jewish identity is particularly precarious. I've made that argument over and over on this shitty site.

7/
But it seems to me that folks can't just keep retweeting and accepting at face value outrage porn produced by Elise Stefanik and signal boosted by Bill Ackman - at least not if they want to be taken seriously by people who might not be predisposed to agree with them.
/end.

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More from @lee_kovarsky

Sep 26
BIG PICTURE COMMENTS ON WILLIS/MEADOWS DISPUTE ON REMOVAL BEFORE CA11 (WONK ALERT):

1) I think Willis wins before a neutral panel, but a neutral panel is unlikely if drawn randomly. So it still nets out close to 50/50 before panel composition is known.

1/
2) I still think the decisive argument is that M's supremacy clause immunity (SCI) defense is insufficient. The DCT didn't rule on that basis, so that would require affirmance on an alternative ground.

2/
3) Willis does a good job of succinctly explaining why the SCI defense stinks - (a) there's no evidence that M subjectively believed the charged conduct was necessary and proper to his office;

3/
Read 10 tweets
Sep 15
JEFF CLARK'S REMOVAL REPLY IS ... WHAT YOU'D EXPECT.

I'm sorry I have little patience for these arguments, they are frivolous. Recall that removal requires (1) D is an officer ("O"), (2) prosecuted for something related to O's duty, and (3) a colorable federal defense.

1/
The fight starts on prong (2), where Clark "reminds" the Court that it has to assume the D's "theory of the case." Well, Judge Jones expressly emphasized that very rule in the Meadows order, so it's not a legal error there.

/2
But assuming the removing Officer's "theory of the case" does not mean that the court blindly credits every single factual and legal assertion O makes in the removal papers. (Like, really, that's not what assuming the O's "theory of the case" means.)

3/
Read 19 tweets
Sep 14
TEXT-BASED REASON WHY FORMER OFFICERS CAN REMOVE (REVISED IN LIGHT OF EXCHANGE WITH @gelbach)

The Eleventh Circuit ordered Meadows and Willis to brief whether 28 USC § 1442(a)(1) permits *former* officers to remove for indicted conduct that occurred when they were officers.

1/
Meadows says yes, Willis says no. The stakes here are extremely high – if the answer is “no”, then any DA in a deep red/blue county can wait until the day a D/R officer leaves their post and indict them for conduct undertaken in the course of the officer’s duty.

2/
That’s a terrible rule, and would certainly chill the behavior of officers in the undertaking of their official duties. The primary concern here is a comparison of 1442(a)(1) with 1442(b),

3/
Read 16 tweets
Sep 11
MEADOWS WILL LOSE *MOST OF* THE STAY LITIGATION ALSO

A *stay* will not pause the state court prosecution, and any argument to the contrary misapprehends the difference between a stay and an injunction. 1/

@AnthonyMKreis @AnnaBower @ARozenshtein
28 USC 1455(b)(4) expressly says that the state prosecution goes forward during the pendency of the removal fight, except that the state court cannot enter a judgment of conviction. (The case can be tried to verdict!) 2/
Normally we don't care about the difference between an injunction and a stay. But here it makes a really big difference. A stay returns to the status quo ante before the district court's dispositive order. Here, the status quo ante is ... 3/
Read 8 tweets
Sep 11
TRUMP STUFF:

NO , THE REMOVAL APPEAL IS NOT “CLEAR” EITHER WAY. A DEEP DIVE INTO THE OPINION BY JUDGE JONES.

I’m noticing some certainty on both sides regarding the outcome of the removal litigation in GA, and of the quality of the legal arguments on both sides. No. 1/
I’ll allow for the observation that Meadows’ attorneys were trounced in the removal briefing, which made the issue look more lopsided than it actually is. 2/
And to be clear at the outset: I think the “law,” as it were, nontrivially favors Willis, but it’s not an open-and-shut case, there are some real holes in the district court (“DCT”) opinion, and the appellate courts are much friendlier to Meadows, personnel wise. 3/
Read 33 tweets
Sep 8
- Jones is not going to give anyone removal, because Meadows had the best argument and he still lost. Everyone knows this, whether they say it out loud or not. Unless Jones is reversed by CA11, Trump is going to trial in state court. 2/
- Removal requires 3 things – (1) that the D be a federal officer, (2) that the indicted conduct be for or relate to official duties, and (3) a colorable defense (here, supremacy clause immunity). This was decided on prong (2). (I'm not sure that was totally wise, see below.) 3/
Read 14 tweets

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