Overheard recently in a Vermont diner ...

A patron told his dining companion that he was happy that his work gives him a way to help people truly in need. Then, 

Background: Autumn, Oct. 2025, in Saint-Alexandre, Quebec, Canada, by RJ Peltz-Steele CC BY-NC-SA 4.0 

Law students test-screen 'actual malice' documentary

Yesterday, my students in Comparative Law and in Torts got to be test-screen audiences for American Libel, a new documentary written and produced by my friend and colleague Dan Greenberg (TST), a senior research fellow at the Cato Institute.

American Libel challenges the policy wisdom of the "actual malice" rule in U.S. First Amendment law. The rule requires, in key part, that public-figure and public-official defamation plaintiffs prove by clear and convincing evidence that the defendant wrote with actual knowledge of falsity or in reckless disregard of the truth. The rule originated in the landmark case New York Times Co. v. Sullivan (U.S. 1964), and subsequently was rejected by other liberal-democratic jurisdictions, such as Canada and the United Kingdom, as insufficiently protective of personal reputation. The film assigns blame in part to Sullivan for our present misinformation epidemic and the collapse of public confidence in journalism.

Greenberg garnered student feedback and led fruitful discussions with students after two showings, morning and night. I am grateful to Greenberg for taking the time to visit us in Dartmouth, Mass., and share his work. And I am grateful for my students who devoted three hours to screening and discussion, asked informed questions, and offered full-hearted and thoughtful critique.

The screenings were a tremendous learning experience for all of us. It's fair to say that everyone looks forward to American Libel reaching general audiences.

You can read more about American Libel at the film's website. My students prepared by reading my "Reconsidering Sullivan" in 2 Tortz (2025 ed.) (free download at SSRN), pp. 516-535. Comparative Law students also read excerpts on Australian and Canadian law from Marie-France Major, Comparative Analogies: Sullivan Visits the Commonwealth, 10 Ind. Int'l & Comp. L. 17 (1999), and Jessica Lovell for INFORRM (2019) on the UK "public interest" defense.

Whitman: Failing rule of law in America means, if not civil war, ever more dismal standards of living, dying

Whitman speaks in Montreal.
RJ Peltz-Steele CC BY-NC-SA 4.0

Professor James Q. Whitman, Yale Law, just concluded an extraordinary lecture on the failure of the rule of law in America.

Whitman gave the plenary keynote at the annual meeting of the American Society of Comparative Law, meeting at the Faculty of Law of McGill University, in Montreal, Canada.

Whitman organized his talk in two principal points. First, he explained that the Trump administration's overrunning of the rule of law is not wholly new, but a result of "longstanding" dysfunction.

Namely, the American "variety" of rule of law never embodied the notion familiar in Europe, that law is to be followed rather than circumvented; rather, the American conception of "freedom" fostered law only as a framework to be gamed. The phenomenon can be seen, for example, in the way bankruptcy is tolerated legally and even regarded as social and economic achievement; the way transaction costs are weaponized to convert civil dispute resolution into settlement calculation rather than contest of merit; and the way criminal charges are reduced to plea bargaining irrespective of guilt or innocence.

For Whitman's second point, he referenced his 2017 book, Hitler's American Model: The United States and the Making of Nazi Race Law. Whitman concluded in that book that Nazi Germany took from American law not racism per se, but the dangerous notion of a legal framework that formally recognizes equality while legislating based on race, thus, e.g., "separate but equal." This point further demonstrates that American law provides a framework to be gamed. Despite the brief respite of the civil rights era, Whitman said, the United States remains plagued by the "curse" of inequality and might always be.

America's rule-of-law problem is made worse by the failure of common law to evolve, and a small, selective, general-jurisdiction Supreme Court woefully outdated and outmatched by the challenges facing a modern economy, as demonstrated in comparison with the constitutional courts known elsewhere in the world. The U.S. Supreme Court is simply too slow to respond to crisis, Whitman said, and when it does, it responds with weak rules that simply invite next-level gaming.

If Trump acts so boldly as to nullify the results of the next presidential election, Whitman posited, then civil war will break out. But the more likely alternative might be no better: America continues to hobble along with dysfunctional rule of law, growing inequality, and an ever worsening length and quality of life for ordinary people, who are constantly on the brink of financial ruin and of death and suffering by curable disease.

Whitman is the author of an article on my shortlist of favorite law review articles ever, The Two Western Cultures of Privacy: Dignity Versus Liberty (2003). The article exemplifies comparative legal research and writing and was essential to shape my understanding of personal privacy in the digital age.

Belgian scholar finds fault on both sides of Atlantic, charts midway course for U.S.-EU data privacy

KU Leuven Profs. Jan Wouters, Evelyne Terryn, and Peggy Valcke; Sylvia Lissens; me; KU Leuven Prof. Marieke Wyckaert, dissertation committee chair; and via Zoom, Prof. Przemysław Pałka, Jagiellonian University, Poland (photo presumed © and used with permission) 

Congratulations to newly minted-Doctor Sylvia Lissens, who defended her dissertation in the Leuven Centre for Global Governance Studies at Katholieke Universiteit (KU) Leuven in Belgium on October 1.

Dr. Lissens's dissertation is The U.S. and EU Approach Towards Personal Data Protection: "A Collision of Tides or a Convergence of Waves?": A Legal Exploration of the Differences and Convergences Between the United States and the European Union. The first paragraph of the dissertation gives a sense of its ambitious scope:

This research addresses the question of what the core differences between the U.S. and EU legal approaches towards personal data (protection) are and if there are signs of convergences. The question is approached through functional comparative law research conducted on three levels to reflect the perspectives of the three main stakeholders: the private sector, civil society, and the public sector, consisting of government intelligence and law enforcement agencies. The United States and the European Union seem to understand and qualify personal data differently in words and deeds, but upon closer inspection they have more in common than may seem at first sight. Consequently, it was possible to develop a roadmap for how the U.S. and EU approaches can co-exist, based on the convergences between the U.S. and EU approaches towards data privacy on all three levels.

I have learned and benefited immensely from serving on Lissens's dissertation committee for about the last five years. I myself posited a convergence in the data privacy expectations of American and European people many years ago, before the EU General Data Protection Regulation (GDPR) superseded its predecesor EU Data Protection Directive. I dared not then conceive a practical framework for a U.S. "adequacy" determination under what became the GDPR, which is the aim of Dr. Lissens's work. 

Faculty of Law at KU Leuven, Belgium
RJ Peltz-Steele CC BY-NC-SA 4.0

The dissertation is especially bold by European standards for suggesting that the EU might have to trim the sails of the GDPR to meet the United States partway. Most works in this vein take the GDPR at face value as a favorable norm. Lissens rather criticizes the GDPR for exporting worldwide norms with almost imperial ferocity, thus failing to give legal regimes and cultural communities around the world an opportunity to develop data privacy standards that might be qualitatively different or appropriately more or less protective of personal liberty. This critique resonates with contemporary critical perspectives in comparative law, which might note that the individualist model of privacy right that the GDPR promotes discounts the prominence of collectivist values in non-European legal systems.

On October 1, Lissens defended her theses ably against healthy skepticism both from European interrogators and from me. I asked whether the hodgepodge of U.S. state data protection systems, as long as Congress remains paralyzed, can possibly be GDPR "adequate" when the state systems reach only consumer transactions. 

Consumer privacy is mostly what the GDPR is worried about, Lissens reasoned, and the EU might have to settle for the states' laboratory approach. Contrary to what I have witnessed as the prevailing ethos among young people in Europe, Lissens argued that European people might have to become comfortable with the notion known to U.S. law that being photographed in a public place is not a privacy violation.

On the national security front, Lissens, like EU courts and human rights advocates, finds plenty cause for concern in dragnet U.S. security surveillance. But she also calls out EU member states for national security practices that are not so different from American methods.

I asked Lissens whether the U.S.-EU Data Privacy Framework can hold up when it does not require the United States to divulge to European complainants how their privacy was compromised or what was done about it. She fairly answered that European citizens usually can expect nothing more from their own governments. 

Moreover, Lissens questions the competence of European courts in the EU treaty system to apply data protection law at all to the national security apparatuses of EU member states, much less to challenge U.S. policy. While she has admiration for the work of European privacy advocates such as Max Schrems, she challenges the very premise of the Schrems decisions in the EU Court of Justice insofar as they assumed jurisdiction over national security policy by way of data protection enforcement.

Among Lissens's distinguished credentials is a 2020-21 stint at Duke University, my alma mater in law, where she held a scholarship to study as a master's student and started adding expertise in U.S. law to her multi-jurisdictional expertise. Lissens, who herself has taught comparative law and graciously visited my class in the past via Zoom, is on the academic job market. She is a gifted scholar and teacher, so schools, place your bids.

Political scientists plan to convene in Vermont

Burlington, Vermont
teachandlearn via Flickr CC BY-NC-SA 2.0

The New England Political Science Association (NEPSA) will return its annual conference to Vermont in 2026 for the first time since 2014, and the call for papers (CFP) is posted.

NEPSA will meet in Burlington, Vermont, on April 23-25, 2026, the 78th year of the organization. The CFP deadline is December 5, 2025.

The conference welcomes papers from faculty and graduate students. There also is a paper competition for undergraduate students, and proposals may be submitted for full panels and roundtables. See the options under the 2026 Conference tab on the NEPSA home page. Here is the CFP:

The New England Political Science Association invites proposals for papers, panels, and roundtables to be presented at its 2026 Annual Meeting, which will convene April 23-25 at the DoubleTree by Hilton in Burlington, VT. Panels will be offered on Friday, April 24, and Saturday, April 25; a pre-conference welcome event will be held on the evening of Thursday, April 23.

In NEPSA’s 78th year, we are pleased to finally return to Vermont for the first time since the 2014 conference.  We welcome a broad array of panel and paper proposals reflecting the various subfields of our discipline. NEPSA has the following dedicated sections:

• Public Law
• Public Policy
• Race, Gender, and Intersectionality
• Technology and Politics
• American Politics
• Comparative and Canadian Politics
• International Relations
• Political Theory
• Politics and History

Proposals from undergraduates will once again be considered for presentation.  Undergraduate proposals will be evaluated on a competitive basis by a special Undergraduate Proposals Committee.  Accepted proposals will present on panels dedicated to undergraduate research; presenters must be accompanied at the conference by a sponsoring faculty member.

Proposals for individual papers, full panels, and roundtables – as well as offers to serve as panel chairs and/or discussants – may also be submitted through the appropriate entries in the “2026 CONFERENCE” drop-down menu above.  Except in special situations, individuals are restricted to two paper proposals.

Professor Steven Lichtman, a friend and academic colleague at Shippensburg University, continues as NEPSA executive director and conference chair.

Academics plan campus free expression conference in Israel, but security concerns compel postponement

Rishon LeZion, south of Tel Aviv
Davidi Vardi Pikiwiki Israel via Wikimedia Commons CC BY 2.5

An academic conference in Israel will consider campus freedom of expression, but has been postponed from January 2026 because of security concerns.

The conference, "Navigating Campus Freedom of Expression in Polarized and Turbulent Times," planned to meet at the Haim Striks Law School, Rishon LeZion, Israel, on January 6, 2026. Conference organizers hope to set a new date in early 2026.

As still posted at the time of this writing, the call for papers (CFP) lists an abstract deadline, 400-word maximum, of November 7, 2025, with accepted full papers due December 15, 2025. Here is the CFP:

The war in Gaza, the rise of the Trump administration in the US and other events in recent years highlighted the complex challenges academic institutions face in balancing fundamental freedoms with community welfare and institutional integrity. Campuses worldwide have become crucibles where principles of free expression collide with concerns for student safety, institutional stability, and the preservation of learning environments which foster open inquiry and debate. 

This international conference aims to examine the multifaceted challenges of protecting and regulating speech in academic settings. We welcome contributions that analyze the theoretical foundations, practical implications, and potential solutions, from legal scholars, social scientists, education researchers, practitioners, administrators and others. 

Potential topics include, but are not limited to: 

• Legal frameworks governing campus speech in different jurisdictions
• Balancing protest rights with institutional operations
• Managing controversial classroom discussions and academic discourse
• Faculty and student off-campus expression: institutional oversight and social repercussions
• Protection of minority students' expression rights and safety
• Comparative analysis of campus speech policies across different countries
• Intersection of academic freedom with DEI policies
• Legal and ethical dimensions of disciplinary measures for speech-related violations
• Institutional independence and protection from external political and legal pressures
• Bottom-up pressures on Freedom of Expression: self-censorship due to student actions
• The role of institutional neutrality in upholding Freedom of Expression

The conference seeks to foster constructive dialogue about these pressing challenges while advancing our understanding of how academic institutions can uphold both free expression and inclusive community values in increasingly complex times.

Haim Striks Law School Professor Roy Peled is chairing the conference. Prof. Peled is a friend and academic colleague from the Global Conference on Transparency Research (GCTR) (2026 CFP due January 20 for conference in June), having served as board member, director, and chair of the Movement for Freedom of Information in Israel (English translation).

Journal calls for imagining FOIA 60 years hence

The Journal of Civic Information plans a special issue on the Freedom of Information Act (FOIA) at 60, and the deadline for submissions has been extended.

Top papers can qualify for cash prizes, publication, and presentation at Sunshine Fest in March 2026 in Washington, D.C. One-page proposals are due at the extended deadline of Nov. 1, 2025, with full papers due Feb. 1, 2026. Here is the call for papers:

FOIA at 60: What Should Information Access Look Like 60 Years from Now?

The Journal of Civic Information invites submissions for its Research Competition and Special Issue marking the upcoming 60th anniversary of the U.S. Freedom of Information Act (FOIA). We are looking for innovative ideas and forward-looking research that explore not only FOIA’s legacy but also the future of access to public information in the decades ahead.

We welcome proposals that imagine the next era of transparency, accountability, and civic information, whether through reimagining FOIA itself or proposing entirely new systems for public access to government information. Selected proposals will result in papers that will be judged for cash prizes, presentation at national Sunshine Fest March 16-17 in Washington, D.C., and publication in the Journal of Civic Information on July 4, 2026, the 60th anniversary of FOIA.

Key Topics May Include (but are not limited to):

• The future of FOIA: What should access to information look like 60 years from now?
• Alternatives to FOIA: What systems could replace or complement it?
• AI, automation, and algorithmic transparency in government decision-making
• Public access to algorithms, datasets, and automated systems
• The role of FOIA in digital governance, open data, and information policy
• Reconsidering FOIA fees, exemptions, and enforcement mechanisms
• Expanding FOIA to new sectors: Should Congress, corporations, or nonprofits be subject to FOIA?
• Global perspectives and comparative transparency models

Read more at the journal website. I serve on the journal's editorial board.

Protestors burn transit stations in Madagascar capital; is American frustration so different?

Protests over lack of water and electricity turned violent late last week in Antananarivo, the capital of Madagascar, and the government responded with tear gas, rubber bullets, and a curfew.

(UPDATE, Oct. 14, 2025: Madagascar President Rajoelina has fled the country, and the military has assumed control of government, purporting alliance with protestors.)

I know about the crisis because of friends with family there. I have not seen the story on American TV, which I mention with anxiety over endangered media heterogeneity. You can read more about the protests at, e.g., Reuters (UK), TRT Afrika (Turkey), RFI (France), WION (India), Al Jazeera (Qatar), and if you dig for it, the AP (US).

I was in Antananarivo, known locally as "Tana," in July. The people there could not have been more gracious and welcoming.

At the same time, socioeconomic tension was plain. That's not unusual in African cities, but in Tana, by plain, I mean that there were troubling and unavoidably visible signs of increasingly worrisome economic inequality. 

Antananarivo, Madagascar, July 2025
(RJ Peltz-Steele CC BY-NC-SA 4.0)

A Tale of Two Cities

Tana from the Radisson gym.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

I used the nicely equipped gym on the eighth floor of the Radisson Blu Hotel in Tana. The room has floor-to-ceiling windows that afford a view of the city from the treadmills. But if one looks straight down from the windows, immediately adjacent to the hotel, there is a residential warren of ramshackle homes. Children play on clay paths between crumbling walls and an open sewer. The neighborhood is right behind a concentration of auto shops, noxious with exhaust and dribbling out the toxic effluents of their work.

Shanty town and auto district adjacent to Radisson. A cable-car line is visible on the horizon.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

In contrast, the Radisson itself is part of a small swanky village that boasts a grocery store, theater, cafes, and gift shops. The village is enclosed by high walls with only one road in from the auto-shop strip. At night, a massive steel door rolls shut to seal off the Radisson village. 

The scene is reminiscent of the fictional town of Woodbury in The Walking Dead, fortified against an incongruent dystopia. Though to reiterate, here, in real life, the souls outside the wall are good people trying to make ends meet. As the sun sets, all but a few local people evacuate the commercial village before the door closes, and then they flow back in with the light of dawn.

Kids play beside a drainage canal behind the Radisson.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Even the walled Radisson village, anyway, is not immune from Tana's socioeconomic troubles, because the utility infrastructure is the same, inside and out. The tap water is not recommended for drinking, and power outages are frequent, if usually short.

Malagasy people generally don't have freezers and shop daily for produce. The cost of appliances would be manageable for many. But the problem would remain the power grid, which is not sufficiently reliable, even in the city, to make home refrigeration cost effective. When the power goes out, most of Tana life hums on without interruption. But the outages paralyze places such as the Radisson village, where devices from refrigerators to televisions to elevators are essential to business.

In bizarre juxtaposition with the motley cityscape, wires are strung across Tana's skies, visible from anywhere. The wires reach from tower to tower and occasionally dip groundward into modern multistory buildings of metal and brick. This is Tana's brand new cable-car system.

I was not surprised to read that protestors last week set fire to "several" of the cable-car stations.

Madagascar and the Monorail 

A cable-car line fills the sky behind the Tana train station.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

 

The motivation for building the cable-car system was ostensibly sound. Tana is plagued by jammed traffic, which is impeding economic development. One of the reasons people crowd into the tight and unsanitary living quarters of the inner city is that they could not otherwise reach their jobs if they moved to better accommodation on the outskirts.

The cable-car lines promise to soar over the cars and trucks, moving people into and out of the city with quiet efficiency. The lines also are built to reach less developed surrounding areas, rather than tracking the congested main highway, thus inducing new suburbs to bloom and alleviating the crisis of housing, besides transportation.

One doesn't have to look hard at the plan, though, to doubt its cost-benefit analysis. To start with, the road congestion is a function of infrastructure failure as much as volume. Though there are some recently constructed traffic circles, most roads are unmarked by lanes, and most city intersections are chaotic tangles with no right of way indicated by signs or signal lights.

One wonders that infrastructure money might have been spent better to bring the existing potholed road system up to standard before stringing cables over head between shiny stations.

Cable cars hang motionless over Tana in July.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Then there are the cable cars themselves. The first time a friend and I had a look at them, I couldn't help but say aloud, "That wreaks of kickback." My friend agreed. We both thought immediately of "Marge vs. The Monorail."

The 198 gondola cars can hold only 12 passengers each and move only so fast. The system is designed to move daily 75,000 people and replace 2,000 cars on the road. That's not nothing, but also not a big chunk of potential commuters relative to the city's population of 3 million. And if one figures that growing suburbs will attract more people to Tana from impoverished parts of the country, the problem of induced demand is compounded.

Though cable cars are touted as a potential boon for urban development, they work best as a discrete-route solution for particular hurdles, such as topography, and as a complement, not a substitute, for proven mass transit systems such as busses and rail cars, both lacking in Tana. A "bus system" exists only insofar as terribly overcrowded minibuses barrel along customary routes. Limited inter-city locomotives rumble over dilapidated tracks.

Is There a Hyena in the Debt Trap? 

It's unclear from government reporting just how much the cable-car system cost Madagascar, but it's a lot. The price tag was supposed to be €152 million. The French government loaned the country €28 from the French treasury and arranged for the rest by private loan from Société Générale. Malagasy voters were not happy about the indebtedness. Moreover, Madagascar committed to fund any cost overruns. Some reports say that the French loans wound up covering only one of the two system lines.

The government's revenue basis to fund cost overruns and pay back the loans also is shaky. Malagasy people have balked at the cost of tickets on the cable-car system, which range from about €0.65 to €1.1. That might be low by western standards, but it's a lot locally. Daily round trips add up to at least €32 per month in a country where the monthly living wage is only €126, and €85 marks the low end of actual-wage estimates.

President Andry Rajoelina, 2019
(ILO via Flickr CC BY-NC-ND 2.0)

The government has not been forthcoming with data about the project, and no wonder. Malagasy-French businessman Andry Rajoelina has been president since 2019 and held out a technological solution to Tana's legendary traffic woes as a showpiece project. 

Rajoelina's vision has been slow to come to fruition. Plans were sidetracked initially by the pandemic. The French money came only in 2021, and construction began in 2022, with delivery promised in two years. In 2024, the Rajoelina administration inaugurated the cable-car system amid much fanfare and worldwide press. But the system wasn't actually finished then, and operational opening was postponed to 2025. 

On my last day in Tana in July 2025, the cable cars moved, surprising everyone on the ground. The system was not yet open, but was being tested. Buckets of water were loaded into cars to simulate the weight of passengers. The system finally opened in August.

The worst public relations challenge the cable-car system has posed to the Rajoelina administration to date is not its ultimate efficacy, but simply the foreboding physical presence of the empty gondolas hanging motionless over the city. When people are stuck in traffic, or when the power goes out, or when they leave their homes in search of drinkable water, they look up at the network of towers and heavy wires and wonder whether any of that debt and spending will make their lives better.

Don't Look Up 

I'm sometimes guilty myself of a siloed focus on American affairs. And thinking about what's happening in Madagascar makes me wonder whether—when?—the day will come that Americans turn our frustrations into conflagration.

America feels every day less a "developed" country in terms of critical needs such as transportation, healthcare, housing, and jobs. And people struggle more every day to make ends meet, while politicians bellyache over the government supposedly doing too much.

An anecdotal survey: 

Transportation. To travel for work, I have to make the arduous, two-plus-hour trek to the airport via foot, bus, train, and bus again, across slow, unconnected, and overpriced transit systems that my region is lucky to have at all. When I land in Europe, I'll travel about the same distance with one ticket on a rapid, unified transit system in under an hour.

Amtrak is hard at work on "NextGen Acela." But it will only serve the northeast corridor and will top out at 160 mph. Europe hit that mark in the 1970s with trains today running in the 190s. China and Japan have high-speed trains on dedicated lines running at 220 mph. Anyway, "old gen" Acela was a corporate subsidy, as it practically priced out non-business travelers, even before Amtrak introduced predatory dynamic pricing. 

Healthcare. My wife and I saw Trevor Noah deliver his latest stand-up in Connecticut a couple of weeks ago, and he did a long bit on the nonsensical costs and bureaucracies that tyrannize patients in the U.S. healthcare system. Noah was treated for a wrist injury he sustained just before boarding a plane home to New York from his native South Africa. He could have been treated faster and for less out of pocket had he just flown back to a hospital in Cape Town, he only half-joked. 

A Connecticut stage awaits Trevor Noah on September 18.
(RJ Peltz-Steele CC BY-NC-SA 4.0)

Most memorable about Noah's monolog to me, besides his trademark storytelling brilliance, was the chorus of audible vocalizations of assent and empathy from the audience, including us, as Noah described the absurdities of hospital billing, from the mysteries of bloated pricing—weren't we promised "No Surprises"?—and picayune itemization of the mundane to the unashamed prioritization of profit over care.

Housing and jobs. My daughter bought a home in Los Angeles this year and has done yeoman, Instagram-hit renovation work herself. But she's looking for a new job to make the mortgage bearable. From her scores of applications, she recently rated an interview in her entertainment-industry wheelhouse. Yet she was one of 54 people interviewed for one low-level position. A form email later communicated regret that she was among the hundreds of unsuccessful applicants. Every American job-seeker knows such woes amid the full-time job of looking for a job, despite the touting of low unemployment by the administrations of both parties.

A measure of wealth inequality, the U.S. gini coefficient was 41.8 in 2025, on a scale from 0, perfect equality, to perfect inequality 100, according to World Population Review (WPR). That's bad for a well developed economy, comparing unfavorably with, for example, western European countries, which score in the low 30s, and Canada, at 29.9. Worse, inequality in the United States is rising over the long term, while it's falling elsewhere.

Our number is, however, on par with Madagascar. Malagasy data are difficult to come by, but WPR estimates a 2025 gini coefficient of 42.5, also on the rise over the long term.

The gini coefficient is a ratio, so it doesn't speak to comparable sums. People in a poorly developed economy might be quicker to disrupt the status quo when their very survival is on the line than people in a highly developed economy who become unable to afford cable TV. 

At the same time, Americans have a temperamental sensitivity to injustice and, even after 250 years, little patience for tyranny.

History is littered with great societies befelled by their own greedy elites.

Sermon brings legal logic to biblical counsel

NSBC screenshot from YouTube

Tomorrow morning, Sunday, September 28, I will have the privilege of speaking to North Scituate Baptist Church (NSBC) in Rhode Island about Hebrews 13:5.

The verse (NIV) reads:

Keep your lives free from the love of money and be content with what you have, because God has said, "Never will I leave you; never will I forsake you."

I hope to share some legal logic with the congregation, breaking down the verse as a statement of causation. I'll also describe how I found evidence of the verse's causal truth when I traveled to one of my favorite places in 2020, Ghana.

When the service is available online, I will link to it here (message archive; YouTube channel; full service). Meanwhile and for then, below are the slides I will share (all RJ Peltz-Steele CC BY-NC-SA 4.0).

I'm grateful to my friends at NSBC, especially for the support of Pastor Kim Nelson, administrator Gretchen Pino, and musical coordinator Linda Farynyk. Thanks to my friend Eric D'Agostino for pointing me to the prayer of Julian of Norwich.

I wish all a blessed first weekend of autumn.

 

From national TV to local school, suspension of dissenters evidences worrisome speech suppression

Google Gemini CC0

Free speech is in danger in the United States, and two recent matters, one national and one local to me, are representative and worrisome.

The national story is the suspension of Jimmy Kimmel from his late-night talk show on the ABC television network.

Where Kimmel apparently crossed a red line with ABC parent Disney was his equation of the accused assassin of Charlie Kirk with the America-first MAGA movement. The comment stoked right-wing ire, and Kimmel was accused of inciting or supporting political violence—an inferential leap he did not make. In the light of day, I find Kimmel's comment in poor taste. But he did not advocate for political violence. 

I support the prerogative of Disney, as a private creative company—subject to procedurally proper and viewpoint-immaterial business regulation, such as antitrust law, which has been under-enforced in the administrations of both parties—to make decisions about what content it wishes to broadcast. But as in the case of cancelled late-night host Stephen Colbert, the decision here is not about reasoned disagreement, rather is about capitulation to government threats to use state power unlawfully and unconstitutionally.

Circumstances strongly suggested that Colbert's Late Show was canceled because of government threats to use the Federal Communications Commission (FCC) broadcast licensing authority to block the merger of CBS parent Paramount with media company Skydance. But it was difficult to find direct rather than circumstantial evidence of the connection between the government and Paramount.

No longer. FCC Chairman Brendan Carr plainly threatened to use FCC power to attack Nexstar, the company that owns a great many ABC affiliates that carry Disney content. Nexstar and Disney are said to be courting, and Nexstar has a history of dissatisfaction with FCC regulation that would stymie the growth of its media empire. So the FCC threat to Nexstar was taken to heart in the boardroom, The Wall Street Journal reported, and became a threat to business partner Disney, in turn. 

Curious how the anti-regulatory right is suddenly interested in a strong administrative state.

The problem here is that censorship of political content, that is, political viewpoint discrimination, is not a legitimate basis for the FCC, nor most any governmental authority, to flex its muscle in interference with the private market. The closest Carr came to a legitimate rationale for FCC retaliation was the assertion that programming such as Kimmel's perpetuates false information. 

Yet even if that were a proper basis for government intervention—arguable, depending on the nature of the information alleged false—there is no evidence that false assertions of fact by Kimmel or anyone else motivated Carr's threat. Whatever one thinks of Kimmel's appraisal of the Kirk murder, or of MAGA, he uttered only opinion.

Incidentally, President Trump's lawsuit against The New York Times Co. this week evidences the same disregard for the difference between fact and opinion. The voluminous complaint is rife with allegations that establish a difference of opinion, but precious few claims of false assertions of fact. So over the top is the complaint that it evidences the abject failure of the legal profession to regulate itself as a profession. (UPDATE, Sept. 19: Did I underestimate the profession? See Trump v. N.Y. Times Co. (M.D. Fla. Sept. 19, 2025). HT @ Dan Greenberg.)

To be clear, if Disney wants to suspend Kimmel because executives don't like his politics, fine. I might worry about whether antitrust law is enforced with sufficient vigor, or simply whether our media infrastructure is sufficiently healthy, that Americans have access to a wide range of viewpoints through audiovisual media. But my worries would not warrant interference with a business owner's political prerogative.

My objection here is to the threatened abuse of power by the FCC. A broadcast regulatory authority picking who may and who may not have access to media channels based on the broadcaster's support for the ruling regime is naked and shameful authoritarianism.

And then there is the local.

In my community of Barrington, Rhode Island, a teacher, Benjamin Fillo, has been suspended from Barrington Public Schools for his TikTok comments about Charlie Kirk.

Once again, I find the speaker's comments in poor taste. According to The New York Post and to WLNE—an ABC affiliate which, incidentally, recently became the second local news broadcaster under the control of the right-wing-disinformation-associated Sinclair group, somehow without provoking FCC regulatory objection—Fillo called Kirk a "piece of garbage" and accused him of hatred for the LGBTQ community and hostility to women's rights and democracy.

Like Kimmel, Fillo did not advocate for political violence. I would like him to have condemned it. But that preference is mine.

Also, as a parent in this community, I am sympathetic to parents' concerns that the public school be a place of neither ideological indoctrination nor ideological marginalization.

What worries me here is that Fillo's speech occurred on TikTok, outside the school, outside his capacity as a teacher, at least insofar as has been reported. His video seems to have effected no "material and substantial disruption" of the schoolhouse, to use the probably applicable constitutional language, other than disruption by people who self-servingly would claim disruption.

The school district has hired an independent investigator. Sounds a bit Orwellian, but better than a summary firing. What's concerning is that, again, as far as I have seen reported, the investigation is based only on extramural speech, and worse, Fillo was placed on administrative leave for his extramural speech. So already he's been singled out and penalized upon no apparent evidence that he poses any threat to students.

When my daughter was a minor in Barrington schools, she had teachers with whom I disagreed, and with whom she disagreed, politically, and who had different religious beliefs from mine, and from hers, just like I have law students who have different opinions and beliefs from mine. The appropriate pedagogy, which my daughter's teachers employed, and which I endeavor to employ, albeit in the different context of graduate school, is to equip students to disagree. It's not an easy line to draw, but that's the job of a teacher.

What does not work, what I would not want from my child's teachers, and what I try not to do in the classroom, is to pretend to be some kind of politically neutered Ken doll incapable of forming a personal viewpoint. That's what no teacher should model for students. Yet that seems to be what Barrington schools, and too many parents, want to see.

That Fillo has opinions outside the school, whether or not I agree with them, whether or not students and parents agree with them, suggests to me only that he is a good teacher, because he is a whole and thinking human being. If he had no discernible political views, I would wonder whether he were competent to teach social studies.

The takeaway from both these matters seems to be that our society is suffering a worrisome intolerance for disagreement.

It's becoming cool and normal for government to use its power to enforce group-think—a place I thought the right promised to move us away from. And it's becoming cool and normal for employers, even public employers, to capitulate to demands that group-think be enforced, or at least that dissent be suppressed. 

The marketplace of ideas is a flawed metaphor. But it's not all wrong. What I know for sure is that ours should not be a country in which the marketplace of ideas sells only one kind of bread, and everyone must get in line for it.