BY JOHN K. WILSON

This week, there was what Jonathan Turley called a “major controversy brewing over free speech and censorship at Emory Law Journal.” Robert George argued, “It’s hard to think of a stupider, more self-defeating idea than imposing political litmus tests on articles submitted to major law reviews. But that’s what the Emory Law Journal has done, rejecting on ideological grounds an essay by the brilliant legal scholar Lawrence Alexander.”

George is wrong on every count. The Emory Law Journal did not reject Alexander’s essay. They did not declare any ideological grounds and in fact expressly stated that they would happily publish views that most of the editors disagreed with. There is no political litmus test that the Emory Law Journal has ever stated or hinted at. 

Here’s what really happened: Larry Alexander submitted an embarrassingly bad article partly copied from one of his rants on a blog, and when the editors asked him to edit it and provide citations for some of his dumbest arguments, he refused to make any changes and instead tried to present himself as a victim of censorship.

Gail Heriot wrote in defense of Alexander at Instapundit: 

Editor-in-Chief Danielle Kerker sent an ultimatum to Larry: Either “greatly revise” the essay or the ELJ will have to “withdraw[] our publication offer.” Larry understood how destructive to academic values it would be to cower under such pressure. He declined to revise the article.

No, revising an article is not destructive to academic values; it is the essence of academic values. This is standard operating procedure for any publication: If you refuse to make any changes, the editors can refuse to publish it.

Here were the changes Emory Law Journal editor-in-chief Danielle Kerker asked for in an email to Alexander:

I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.

We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)).  And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.

Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.

The use of terms such as “insensitive,” “hurtful,” and “divisive” attracted angry attacks from conservatives. Personally, I don’t think “hurtful” or “divisive” is a good argument against scholarly work, and I wish the editors had focused exclusively on the essay’s intellectual flaws. But I suspect the editors were just trying to be polite by suggesting that Alexander was unintentionally offensive. We don’t know exactly what the editor was talking about, but if I had to guess it would be the section where Alexander argues that Disparate Racial Impact theory is “more in line with regimes such as Nazi Germany than with the literal ethos to which most Americans adhere.” (I think Alexander meant “liberal” and not “literal,” but I don’t want to censor him by doing any editing.) Comparing scholars concerned about racial disparities to Nazis is not merely “hurtful” and “divisive.” It’s also intellectually lazy, idiotic, and morally repugnant. I don’t think that requesting an author to edit out dumb and offensive Nazi comparisons is a form of censorship. I think it’s good editing.

Perhaps the editors should have realized that some conservatives are very sensitive and need safe spaces free from words like “harmful” and “divisive” that might trigger their ideological outrage. But I have a hard time objecting to any of their editing critiques or presuming that political bias is the only possible reason why editors might want to change an essay this badly argued.

Even the harshest critics of the Emory Law Journal editors admit in their arguments that changes in Alexander’s essay were warranted. According to Gail Heriot, “As for ‘the blacks,’ I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn’t using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The ‘the’ was intended to make that clear.”

That might be true of one reference, but not for this one: “Perhaps the weakest part of Michael’s case for DRI theory is his account of the etiology of the handicaps he attributes to the blacks.” Alexander is definitely not writing about “the” particular blacks in some hypothetical. So by Heriot’s own reasoning, Alexander was referring to black people in a way that’s considered rude and that it would be reasonable for editors to want to change.

Alexander’s essay is a compendium of bizarre and unsupported claims. Alexander tries to minimize the harms of slavery by pointing out that “in the absence of slavery, today’s individual blacks would not exist.” He explains this further: 

For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

Yes, he’s actually arguing that we must oppose reparations for slavery because without slavery we would all be different people with different parents. It’s an argument as novel as it is idiotic.

Alexander also argued: “Racism is not the cause of black poverty to the extent it exists. (If it were, African and West Indian blacks would not be doing as well as they are, or emigrating to the U.S. in great numbers.) Although racism could be a problem for blacks today, the reality is, thankfully, is that it isn’t.” I have a hard time taking someone seriously who thinks that immigration to America by black people from Africa is proof that racism is not a problem. (By that logic, there has never been any bigotry in any country that has any immigrants.)

Alexander’s essay is full of strange sentences, like this: “Government cannot magically put dissolved black families back together, or instill love of education and an aversion to criminality in black children.”

Alexander also wrote: “The real impediment to the advancement of poor blacks—and everyone knows this, regardless of whether they admit it—is the cultural factors that have produced family disintegration.” When your standard for evidence is “everyone knows this,” it shows a distinct lack of scholarly rigor. So I have a hard time understanding why anyone would condemn the Emory Law Journal editors for merely asking for citations for his claims that racism doesn’t exist. 

Turley writes, “Emory editors objected to Alexander saying that racism is not a problem today. As noted, I disagree with this view.  However, I am not sure how the editors expect him to add citation to his own viewpoint. Would they demand a citation from an academic who wrote ‘Racism is a problem today’?”

It is absolutely bizarre that Turley thinks legal scholars shouldn’t have to cite evidence for the “viewpoint” that racism doesn’t exist. Of course statements that “racism is a problem today” should have evidence to support it, too. It’s understandable that an editor might be more likely to ask for a citation for a counterintuitive claim than for one that’s almost universally accepted. But Turley is accusing the editors of hypocrisy without any evidence that they would impose a different standard on authors they agree with. It is not anything resembling censorship to merely ask an author for a citation when they claim racism doesn’t exist.

The final objection of the Emory Law Journal editors was their biggest concern: “crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.” Obviously, a tribute to Michael Perry’s work should include critiques of his work (even if they are about an obscure essay Perry wrote forty-five years ago). But Perry never wrote about reparations, which was the focus of Alexander’s essay.

It turns out that Alexander’s piece is self-plagiarism. In 2021, Alexander published an essay on the far-right blog American Thinker titled “The Misguided Call for Reparations.” Substantial sections of that blog post are repeated word for word in the Emory Law Journal submission, but there is no citation for it in the paper. (It’s not clear if Alexander informed the editors that much of his essay had already been published.) This does explain why so much of Alexander’s essay is unrelated to the work of Michael Perry that was the subject of this celebration: Alexander was simply recycling his rantings about race that he’d already published.

Turley writes: “Ideally, this conflict should have been resolved with more work on both sides. I do believe that this essay would have been greatly improved with some rewriting or further explanation of these points. However, editors have an equal responsibility in maintaining a diversity of viewpoints and in recognizing that some ‘editing’ demands can reflect bias or viewpoint discrimination.” That’s a reasonable approach. However, Alexander withdrew the essay, and the Emory Law Journal didn’t. Alexander could have pushed back and refused to make certain changes that he felt were biased demands. Instead, Alexander refused to make any changes at all and refused to do any editing work. 

Heriot and Turley both claim (without evidence) that conservatives and libertarians face massive censorship by law journals. Yet the Emory Law Journal did invite a conservative to contribute an essay, and Heriot reveals that that there was a second conservative who also wrote an essay for the tribute, and there were apparently no conflicts with the editors about it or viewpoint discrimination against that writer. This indicates the problem with Alexander’s essay was not bias against his conservative viewpoint, but the poor writing and failure to write about the assigned subject because he wanted to reprint his blog rantings.

While we should be concerned about ideological discrimination in academia, we need to reject baseless accusations of bias about editing a badly written essay. This is an effort to intimidate student editors of a law journal into abandoning scholarly standards simply because a conservative submitted an article. Anthony Michael Kreis noted, “I do not love law professors singling out law students by name on nationally read blogs for the work they do on our behalf **without compensation**.” Louis Bonham at Minding the Campus made a not-so-subtle call for student editors to have their legal careers cancelled, calling this a “huge black eye for the ELJ, Emory University School of Law, and, quite possibly, the careers of the students involved.” The comments on the Instapundit article included two people posting the editor’s photograph and this bigoted statement: “I can’t imagine why a woman named (((Kerker-Goldstein))) would be trying to subvert our national Christian values and customs on behalf of our racial enemies.”

The attacks on the Emory Law Journal also reflect a deep misunderstanding of what academic freedom means. Robby Soave in Reason mentioned the case of Alexander’s occasional coauthor Amy Wax and wrote, “Alexander is facing an even more obvious violation of basic principles of academic freedom.” While the Wax case is a real threat to academic freedom because it involves a university punishing a professor for their views, the Alexander incident isn’t about academic freedom at all.

Academic freedom is the right not to be punished for your views unless you have violated scholarly standards and receive due process. But the failure of someone to publish you is not a form of punishment. Nobody has a right to be published free from editing.

Editors get to make judgments about articles. The judgments may be good and they may be bad, but they are not violations of academic freedom. The only academic freedom right here is the right of the editors to make editing decisions. Just like a graduate student teaching a class is protected by academic freedom, so too are the student editors of an academic journal.

The attacks on the Emory Law Journal reflect the ideological blinders of our times. So many people are convinced that conservatives are oppressed on campus that they jump to conclusions that confirm their presumptions at the first hint that some “woke” student might be concerned about “hurtful” language. But I think the details about this case show a very different picture from the initial reports, and reveal that the Emory Law Journal editors made reasonable reactions to a deeply flawed submission and were still open to publishing it.

John K. Wilson was a 2019-20 fellow with the University of California National Center for Free Speech and Civic Engagement, and is the author of eight books, including Patriotic Correctness: Academic Freedom and Its Enemies.