If the question is as I understood it--what is media indecency? (as in that which the FCC can regulate)...Kaplan's the one who seems off his rocker.

You can't teach with soundbytes. That's my point.

He wasn't teaching, boi, and you haven't presented any evidence that he would ever answer the question like this in a classroom. Tons of professors who blog understand that their opinions are largely irrelevant to classroom discussions. While Volokh might think much of obscentity law is an unwelcome strain on the First Amendment, in my class with him he nurtures a perfectly neutral viewpoint, giving all arguments pretty much equal time and focus, and omitting his personal views.

I have to agree with Nick. If nothing else, it's ridiculous to believe that academics are different from everyone else, and to hold them to a standard where they can't have their own beliefs. It's only when these beliefs matriculate into the classroom and define what views the academic teaches that it becomes a problem. Everyone is entitled to their own opinion, regardless of whether or not they are an academic.

I have to agree with Nick. My Fed Courts professor was very liberal and outspoken in many of her books and law review articles, however, she is professional enough to know the distinction between classroom education and extracurricular commentary. In fact, it was my Fed Courts class that largely informed my Federalist tendencies.

Even if one wanted to argue that it is inappropriate for professors to make such comments, I would say that teaching students in only a part of what a professor does. All professors are pretty much expected to write and comment on an extracurricular basis as the more prominent the professor, the more prominent the school becomes.

Hmm... tempting as it is to defend Boi here, I can't see hosting an Air America show (even a bad one) as a firing offense. The man's clearly making a polemical point.

That said, Chris, your reading of the statement commits the same type of error to which Boi seems to object, and if 'bringing the University into disrepute' is a grounds for dismissal, there might be more of a case here than against Prof. Volokh. While Volokh is definitely partisan in his writings on the Conspiracy, he's not flippant.

Take the lead statement: "Indecency is the right wing attempting to redefine dissent as unpatriotic." Where this statement isn't garbage (and if it is a reference to Stern, dignifying toilet-humor as 'dissent') it's casting aspersions upon the motivations of one's opponents in a way that is rarely, if ever, justified. There are plenty of perfectly reasonable reasons to support indecency rulings that have nothing to do with 'dissent,' except in some fantasy-land where having a woman fake an orgasm on air is a statement of great import. The right doesn't need to impeach Stern's 'patriotism,' such as it is. The indictment can stop at 'crude.'

(Indeed, taking the position of the boogeyman 'right' for a moment here, we're perfectly capable of maligning one's patriotism without addressing obscenity. I would think the Dixie Chicks proved that. Unless the whole mess was a pre-emptive counterstrike based on the fact that we knew they'd pose nude... ;) )

Of course, Rush Limbaugh does the same thing. Indeed, Chris, so do you. ('We complain about reality TV, but then we watch The Littlest Groom (as conservatives complain about the gay couple down the street trying to ruin the sanctity of marriage).' makes sense in only the oddest constructions of 'we.' Certainly those conservatives--not all of us--who say that homosexuality is a threat to the sanctity of marriage aren't the normal demographic for marriage-based reality TV shows.) And I do as well. But none of the three of us are academic educators whose words will either attract or put off potential students.

And here's where the comparison with Volokh flounders. Sure, he's got some strong views, but he's generally respectful of his opponents, and behaves in a scholarly manner. I'm not surprised at Nick's description of Volokh in class, because there's nothing to indicate he'd behave to the contrary in his writing. But the piece above, particularly if it's not isolated, would make me wonder about Kaplan. It's a perfectly valid technique for talk-radio, but it would call into question my respect for him as an academic.

Probably doesn't rise to the level of a firing offense, though.

Tony, Did you check out the One Question feature on the "I Want Media" Web site? I mean, it's obvious this is just a short, quippy (spelling?) feature.

I think it's also important to note that he's a communications guy, not a legal academic. He was "deputy campaign manager and chief speechwriter for Walter Mondale's presidential campaign," according to his bio on the USC Web site. They knew they were getting an opinionated guy. BFT might care, I think he's wrong to care, and I think USC will likey be with me on this.

Chris:

He may not be a legal academic, but he is an academic. I don't think the standard should be set much lower for them. And whatever his past history, he is now an academic, teaching at a university, and should be held to such a standard.

And nothing says that you can't do 'short and quippy' without casting your net so overinclusively. Probably not a firing offense, as I said--so I agree, USC will probably agree with you--but it's poor form.

Academia is overrated. If it's an issue of him defaming his employer, the university, ok. However, I do get tired of the notion that all forms of debate must involve Roberts Rules of Order and be drafted in formal position papers held in a room replete with Illuminati-style leather furniture.

As you note, there is a certain amount of dramatic license he's taking with his statement but clearly part of his message is no doubt based in the words and style he choose to express it. Just like wacky Anne Coulter writes a book called "Treason."

Academics are still people and should be allowed to let their hair down once in a while without worrying about being kid glove respectful to their opponents and triple checking the malleable facts that underly their arguments.

Besides, we all know they think it so why mask it? Particularly when it comes to politically charged issues. I recall when everyone was so shocked when Bush's "Adam Clymer major leage ...hole" comment got picked up on the mic. Big deal? What does that prove? That George Bush is a human being? Let's not even begin to discuss the Nixon tapes (yikes!).

As far as attracting potential students, I daresay that unless we're talking about the "I'm taking AP everything my senior year of high school, am class president, play the violin, am captain of the football team, work weekends at soup kitchens, work at nights to save for college" type of kid, chances are 11th and 12th graders know little to nothing about the faculty of a given institution.

Just wondering--did this guy pay you to advertise his blog on your website?

Obviously, I would normally assume such a comment (about someone paying me to link to them) was meant in jest. But fearing, in light of the author, that it was not, I will reply.

The all-too-obvious answer is "No," and I am a little offended at the question itself. Blogs provide links to other blogs when commenting upon things being written "out there."

Also, I don't see why he would pay me, since he gets constant love from Wonkette and has gotten links from Kaus (March 4) and others all the time.

I know the real reason raj has a problem with any promotion for BFT is that raj is homophobic -- well, at least homo-heterogeneous-phobic. He doesn't like any gays not as liberal as himself, and BFT is both openly gay and openly conservative. I like his writing and find him to be sometimes entertaining and oftentimes informative. I have, in fact, linked to him once before on this blog (see here) and a couple times at Law Dork.

So it's not a firing offense, but it's poor form. Okay, I didn't think anyone was trying to dignify Kaplan's behavior. Personally, if he was my professor, I'd question his intellectual honesty and discipline, but my principal judgments would come from his performance in class.

It's also important to realize that students (especially law students) often know their professor's politics, and law professors don't always do a very good job hiding their politics. College students are grown ups, most of them know that every has opinions, and so long as a professor isn't on a mission to secretly convert students to a highly controversial point of view, I think there's nothing requiring any official action or reprimand. Professors thrive partly on student reviews, so I think poor form is often its own punishment. Maybe that means we agree, Tony, but I guess I don't see what you think ought to be done, if anything.

Well, as I said, it's poor form. I suppose I could suggest twenty lashes with a wet noodle or something, but as you pointed out, it's mostly it's own punishment.

That said, BFT's letter may serve a valuable purpose. If a couple of such letters land at an administrator's office, he's likely to raise an eyebrow. Raised eyebrows lead to quiet talks in the hallway, along the lines of, "Prof. Kaplan, please remember that in addition to being a shock jock, or whatever the youngsters are calling their rock-star radio personalities these days, you're also a teacher. You're probably not out of line here, but you're close. You should probably be careful in the future. By the way, though, funny line about the 11-year-olds."

As opposed to Brian, I think if academics wish to continue to have the special role they claim to play, they are obliged to follow certain rules of academic rigour, on or off campus. To say that Prof. Kaplan is behaving no better than Ann Coulter is... well, it speaks for itself, really.

Part of me wants to agree with Tony, but I truly continue to think that what Kaplan did was present the problems with our modern understanding -- legally and culturally -- of what constitutes indecency. That he did so in an amusing, quippish (again, spelling?) way makes it a non-academic statement (which it was never supposed to be); it doesn't make any of it incorrect.

Exactly what is this superman status that academics enjoy, this great power that brings great responsibility never to mouth off anything that wouldn't pass muster for academic publication?

Doctors have high status in our society, but they aren't required to be totally sober and unflippant when discussing issues, even issues relating to their field. HMO jokes abound even when doctors are in public forums.

If there's an issue of bringing the employing institution into disrepute, I doubt that a student would fail to attend a university on the basis of a single political but non-bigoted (i.e. not attacking on the basis of race, gender, orientation, religion, nationality) comment anymore than a ptatient would fail to go to a hospital on the basis of the same.

And I'm really confused about the first sentence of his quote. I assumed he meant that calling dissent unpatriotic is indecent in the same way Molly Ivins uses obscene here: "This means the industry's profits are down from obscene to excessive." She doesn't mean that there are nekkid women in the insurance industry's financial reports; she means that we should have the same reaction of shock and disgust to the profits that we would have to seeing pole dancers in church. The prof meant that calling dissent unpatriotic is not something that decent people do.

"... I think if academics wish to continue to have the special role they claim to play, they are obliged to follow certain rules of academic rigour..."

I think it's more a case of having that role being thrust on them by aspiring academics and brown-nosing graduate assistants and students rather than the academics claiming the role themselves.

Are some academics drunk with their own power? Sure. However, I think for the most part they see themselves as just doing a job they love rather than acting as some Platonic guardian class.

I actually have a friend that will be joining the ranks of legal academia soon and, while I'll always respect his opinion as someone who is exceedingly bright, there's certainly nothing magical about the title "professor" that will make me view him in a different light.

So long as academics are performing their duties and not blatantly defaming the university they work for, I don't think there's any special code or guidelines they should be held to.

The thing that confuses me about all this is: Since when are academics not allowed to have and express opinions? It might be one thing if he were blatantly pushing some sort of untoward agenda in class to the detriment of his teaching.

I have a law professor who makes provocative statements frequently. Nevertheless, they're usually thrown out to make people think. I see nothing wrong with this, although some people get angry about it and occasionally complain. (Additionally, sometimes people hear messages that were not in the words being said.)

That being said, this guy wasn't in class. And it's hard to see how what he did otherwise brought any kind of embarrassment on his employer. Even if he did "embarrass" the employer, it seems to me that it would take more than that to lead to firing someone. To say otherwise — although the employer might not be a government agency subject to First Amendment restrictions — is to provide a powerful tool for perverting public speech.

I took the attempt to be to define indecency, not only to define indecency in media. Thus I didn't have a problem understanding the comment about the 11-year-old. It looked to me like the guy took shots at a couple different political groups, as well.

And what I said above about "hearing things that were not in the words being said..." — how did anyone connect the first comment to Howard Stern? From what I can tell, the conservatives are doing this, to nearly anyone who speaks out against the war in Iraq in particular and I believe it is possible to define this as an example of indecency when it happens.