Many Generalizations about International Law Professors …

… in my response to Eugene on the First Amendment and free speech and the HRC, over at Volokh.  I’m not cross-posting it here because it is somewhat specific to Eugene’s post.  However, it is filled with many generalizations and unsupported assertions about what I think international law professors, taken as a community, think about free expression and the specifically American First Amendment and hate speech.  I wouldn’t want anyone to think that I was hiding the ball, so to speak, in saying one thing at Volokh and another here at OJ.

However – quite separate from the not-entirely-kind things I say about Our Intellectual Community – and in response to the complaints of commenters that I’m making unsupported assertions, I have a little update on the ethics of blogging and wondering when it’s okay to make unsupported assertions.  For those of us who blog, it’s often a question – it’s a blog post, after all, not an academic article, and if you had to do it like true scholarship, you wouldn’t blog, or at least would only blog when you had done lots and lots of research.  But it invites commenters to say, what’s your support? Sometimes – as in that post – I want to say, this is my subjective view, based on having been active in this community for a long time, although your mileage may vary.

Which is a reason, as I also say, I’m skeptical about citing blog posts in actual scholarship.  There is some law review piece, I believe a student note, that cites me from OJ as authority for the proposition that the recession had gone worldwide.  The full text of the blog post, as it happened, was pretty nearly, ” The recession has gone global.”  It linked to a news article of about three paragraphs.  This gives me pause.  And yet there are plenty of blog posts that I do think citable, including some of my stuff on proportionality and the laws of war, just war theory, theorizing about Michael Walzer’s work, and, of course, robots.  Many bloggers, including folks here at OJ, are much more academic in their approach to blogging than I am, and it really is short form scholarship.

But I am curious about how readers see the ethics of blogging, as it were, on these kinds of questions.  Here’s just that chunk, largely unrelated to the rest of the post, that I stuck up as an update at the end.

I see I’m taken to task in the comments for attributing things to the “international law community” or IL professoriat at large without naming names or otherwise backing this up.  I mention it because this is a fairly common charge in comment threads about various kinds of generalizations in blog posts, mine and zillions of others.  Sometimes I think it a fair point, other times not.  This is really a longer, separate post about ethics of blog posting, but actually, at least on this occasion, I don’t think – contrary to the comment – that I owe any recitation of particulars.  This is not an academic paper; it’s a blog post.  I’m asserting a generalization – “if my confreres were honest about it” – on the basis of my long experience with a particular academic community.  Sure, your mileage may differ.  But no, look, in a blog post, I don’t think I have any obligation to spend another five pages putting in particulars.  If that means I’m just asserting it on my personal authority, nothing more, that’s right, and fine by me.  If I thought I had to provide academic chapter and verse for stuff in blog posts, I wouldn’t blog.  If you conclude, on the other hand, that I routinely really have no idea what I’m talking about, then presumably you’ll do that “exclude x” function; all good.

That, of course, is partly because I think I do know this particular community pretty well and think I’m right about that – not as some hidden agenda of whatever, nor some dark conspiracy, but simply because – without using up time of my research assistants, but simply consulting my own sense of this scholarly community (so, again, if you want to dispute this for not having so much as run a Westlaw search, sure, you can, and I’ll merely shrug and say, well, you can’t please everyone) – I can’t think of very many occasions on which US First Amendment standards have been defended as the right thing, whether for the rest of the world or, as my impression goes, even for the United States.

I haven’t read everything, and perhaps there is some body of literature out there I’m unaware of – but it is not really very likely.  The feelings in the international law professoriat, to judge by its scholarship at least, or my distilled recollection of it, are that the jurisprudence of the First Amendment does not take hate speech seriously enough.  If that is an accurate characterization, even if merely on my take of it, then I think that if you are Eugene, and hold his views on hate speech, that is not irrelevant information to you.

But, more broadly, in the ethics of blogging, as it were, the fact that I have not “named names” or spent five pages documenting what is plainly my own view of a community in which I have been a long and active participant is not an issue.  One might dispute my characterization, but merely to say ‘you didn’t document your subjective impression’ does not actually move me, at least not when it comes to blogging.  This is a very important reason, however, why I am skeptical about citations to blog posts, at least on the ethics with which I offer them, in actual scholarship.  I’m not doing scholarship here.