Let’s be honest, Christopher Rufo is the ratfucking king. While I don’t agree with him about anything, when it comes to dirty tricks, nobody does it half as good as him, he’s the best. Whenever Rufo releases a new report, the “woke” tremble, and pray he’s targeting someone else.

Rufo’s current crusade is focused on academic plagiarism. About a year ago, he started accusing prominent progressive academics – mostly Black women – of plagiarizing parts of their scholarship. His method was brilliantly simple, essentially just comparing the academic’s work to their sources and highlighting the similarities. Lo and behold, a lot of academics appear to copy banal observations and statements of fact without using quotation marks or attributing them to a source.

Anyway, Rufo gets results. His report accusing Harvard President Claudine Gay of plagiarizing parts of her 1998 dissertation, among other works, helped precipitate her resignation. And his recent report accusing Vice President Kamala Harris of plagiarizing parts of her book 2009 Smart on Crime: A Career Prosecutor’s Plan to Make Us Safer from press releases and Wikipedia, among other sources, was immediately picked up by the New York Times.

The genius of Rufo’s grift is that he’s right, at least according to his targets and their supporters. Academics universally define plagiarism as copying words or ideas without proper attribution, and they’ve gradually convinced just about everyone else to accept their definition, including journalists. What’s more, they’ve made plagiarism the academy’s only capital crime, punishable by expulsion or worse. Just ask any student hauled into the academic star chamber called an “honor council.”

The only problem is that academics and journalists alike are massive hypocrites, who enforce their own plagiarism norms against themselves almost entirely in the breach, and even then only reluctantly. When students plagiarize, there’s no excuse, but somehow when academics plagiarize there are always mitigating factors, even though you’d think academics are far better situated to avoid plagiarism than their students.

I’ll be blunt. The copying Rufo identified is absolutely plagiarism, as academics and journalists define it. Students are punished on the regular for doing exactly the same thing. And if it’s wrong for students, it has to be wrong for their professors as well. The wrongness of copying without attribution can’t depend on who’s doing the copying.

But why is plagiarism wrong?

Gay, Harris, and the other academics targeted by Rufo copied expressions notable only for their banality. If that’s plagiarism, then plagiarism is a joke. Press releases and Wikipedia were created to be copied. Nobody cares about attribution, because it just doesn’t matter. In fact, there’s no reason to attribute most of the facts and ideas used in a scholarly work, unless attribution will help the reader. And that goes for professors and students alike. No one should suffer for violating pointless plagiarism norms.

Unfortunately, just about everyone is deeply invested in the moral legitimacy of plagiarism norms, especially academics and journalists. It’s incredibly hard for people to question the moral justification of plagiarism norms, let alone whether they should be enforced. Everyone just assumes that plagiarism is wrong, so plagiarists should be punished.

Give me a break. All of the plagiarism Rufo identifies is remarkable only for its banality. For years, no one noticed the copying, because no one cared about it. And they were right not to care, because it didn’t matter. We should just extend the same grace to students, where it matters even less. A student copied, so what? If they copied well, they learned a skill academics and others use all the time. And if they copied poorly, their grade will reflect it. No need for further punishment.

Rufo’s brand of fugazi is brilliant, because academics are incapable of seeing their own bullshit, let alone seeing through it. When you come for the king, you’d better not miss. Unfortunately, Rufo’s academic opponents couldn’t hit a barn door. If they want to beat Rufo’s plagiarism charges, they have to embrace them.

The obvious solution is to tell scholars – and everyone else! – to provide quotations and citations only when they’re actually helpful to readers. If academics want to win the war with Rufo, they’ll have to abandon plagiarism norms, in order to save them.

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky.

Sometimes, an advertisement is worth a thousand op-eds. Last week, one of us co-authored an op-ed criticizing an amicus brief filed by the American Economic Liberties Project and several prominent law professors in the pending Supreme Court case NetChoice v. Paxton. AELP’s brief defends the constitutionality of a Texas law prohibiting social media companies from moderating – or “censoring,” at least according to Texas – user-generated content. Among other things, AELP argues that social media companies and newspapers have different First Amendment rights, because social media is “open-access” and newspapers aren’t.

AELP’s argument is based on two Supreme Court cases, Miami Herald and PruneYard. In Miami Herald, the Court held that Florida couldn’t require a newspaper to print a politician’s rebuttal to a critical article. And in PruneYard, it held that a state could require a shopping mall to permit political speech. AELP claims that social media is more like a shopping mall than a newspaper, because malls and social media are both open-access.

Not only is AELP’s legal argument absurd, but also its premise is false. Newspapers and social media are both open-access, so AELP’s own theory implies they should have the same First Amendment rights. According to AELP, social media and newspapers are different because everyone can publish on social media, but not everyone can publish in the newspaper.

Wrong. Sure, not everyone can publish an op-ed, but anyone can publish an advertisement. All they have to do is pay for it. The only difference between social media and newspapers is that access to social media is free, but you have to pay for access to the newspaper. Yes, newspapers reserve the right to exercise editorial discretion over which ads they’re willing to print. But that’s all social media companies want, and it’s what Texas is trying to prohibit them from doing. The Florida law at issue in Miami Herald required newspapers to give politicians a free right of reply, and the Texas law at issue in NetChoice does the same thing, by forcing social media companies to publish speech that is anathema to their advertisers. If newspapers can offer open-access to ads, but moderate what they print, then so can social media.

But the op-ed wasn’t enough. If telling readers about the problems with AELP’s arguments is good, then showing them is better. So we decided to demonstrate that newspapers are every bit as open-access as social media and exercise editorial discretion in exactly the same way.

So we bought an ad in the Miami Herald, criticizing AELP’s argument by demonstrating that newspapers are in fact open-access, so long as you’re willing and able to pay for access. As of today, our ad is scheduled to run from Monday to Thursday, pending approval.

Amusingly, our demonstration works whether or not the Miami Herald ultimately publishes our ad. If the Miami Herald prints our ad, it shows that newspapers are in fact open-access, because anyone can publish an ad. We were able to create an advertising account, schedule a campaign, and pay for it, in minutes. This default openness is moderated only by the paper’s reservation of the right to reject particular creatives. And if the Miami Herald refuses to publish our ad, perhaps deciding that it violates their social media community guidelines-esque “creative approval policies,” it shows that newspapers are open-access publications that still exercise editorial discretion over what they print. Heads, free speech wins, tails compelled speech loses.

Something strange is happening in the legal academy, and we’re worried about it. On January 23, 2024, the progressive policy organization American Economic Liberties Project filed an amicus brief in the Supreme Court case NetChoice v. Paxton, in support of a Texas law prohibiting social media companies from moderating – “censoring” in the words of the law – the speech of their users, especially conservatives. The brief was joined by several prominent progressive law professors from Harvard (Larry Lessig), Columbia (Tim Wu and Richard John), Fordham (Zephyr Teachout), and Emory (Matthew Lawrence).

Now, there’s nothing improper or even unusual about law professors writing or joining amicus briefs. One of us is a law professor who has written and joined several himself (and the other has worked with lawyers on and joined many amicus briefs as well). And there’s nothing wrong with progressives supporting conservative positions (or vice versa). The law can make for curious bedfellows. Here, both conservatives and progressives want the government to regulate social media companies more aggressively, albeit for different reasons and in different ways.

But there are some serious problems with the AELP brief: It objectively misrepresents the law it purports to describe. AELP claims that the First Amendment allows the government to prohibit social media companies from discriminating against speech they disapprove, because their websites are “digital commercial ‘properties’ made open by their owners for public use.” It relies on the Supreme Court’s 1980 PruneYard opinion, which held that the First Amendment allowed California to require a private shopping center that was open to the public to allow its patrons to exercise a reasonable right to free speech. AELP argues that social media websites are analogous to shopping centers, so the First Amendment allows Texas to regulate them in the same way, by requiring them to permit speech they disapprove.

While many lawyers and legal scholars think PruneYard is no longer good law (following later rulings that pared it back), it was never explicitly overruled, so AELP can still rely on it. But AELP should not misrepresent what PruneYard actually said.

As AELP admits, the Supreme Court’s 1974 Miami Herald opinion held that the First Amendment prohibited Florida from requiring a newspaper to print a political candidate’s reply to a critical article. According to AELP, PruneYard distinguished Miami Herald by holding that “open-access laws do not present the same First Amendment concerns as right-to-reply laws.” That is false. The Supreme Court didn’t say anything about open-access laws. It said that Miami Herald “rests on the principle that the State cannot tell a newspaper what it might print.”

AELP tries to salvage its imaginary distinction between open-access and right-to-reply laws by insisting that “the Miami Herald newspaper did not hold its pages open to all members of the public.” That is also false. Yes, newspapers exercise “editorial discretion” over which articles they print. But newspapers don’t just publish articles, they also publish ads. And they’re generally happy to publish advertisements by anyone willing to pay. AELP insists that “Newspapers are exclusive publications; the public cannot, at any moment, publish their views in the New York Times.” Yes, they can. All they have to do is buy an ad. So, newspapers are, in fact, “open to all members of the public” willing to pay for the privilege. In AELP’s terms, newspapers are and always have been “open-access.”

That’s fatal to AELP’s argument. According to AELP, the First Amendment allows states to prohibit social media companies from censoring users, because social media websites are “open-access.” But newspapers are also “open-access,” because anyone can buy an advertisement. So, AELP’s argument necessarily implies that the First Amendment also allows states to prohibit newspapers from censoring advertisers.

Wrong. The Supreme Court explicitly said the opposite in PruneYard itself. And if the First Amendment means anything, it means that the government can’t tell newspapers what to print.

What’s the real difference between Miami Herald and PruneYard? It’s simple. Newspapers are in the speech business and shopping malls aren’t. The First Amendment says the government can’t force you to share someone else’s speech, but sometimes it can require you to tolerate speech you dislike. And which is social media more like? The business that is in the speech business, or a shopping mall where speech has nothing to do with its business?

It gets worse.

The brief repeatedly tries to couch these laws in terms pretending that these are anti-discrimination laws.

Amici file this brief to encourage the Court to preserve a traditional state power—barring unreasonable discrimination by private industry in the exercise of its business operations.

But that’s also wrong. These are not anti-discrimination laws. And as another law professor, Daphne Keller, has pointed out, those defending the laws in Florida and Texas have only recently pivoted to pretend they’re anti-discrimination laws by grasping at straws for a reason why these laws could be constitutional:

Discriminating against someone based on her race and discriminating against her based on her tweets are not the same thing. The Texas and Florida briefs blur the distinction between the two by conflating different meanings of the word “discrimination.” The states’ laws were enacted to stop platforms from restricting speech based on the message it conveys. Doing that is  “discrimination” in the most basic and literal sense: The platforms are making choices between different things, under rules that treat users differently based on what they say—much as the hosts of a lecture series might exclude speakers or audience members for disruptive or racist remarks. The states’ arguments equate this with the important and distinct issues addressed by civil rights laws. Those laws broadly prohibit discriminating against people based on who they are, like hotels or restaurants refusing to serve Black customers. 

The brief, weakly, tries to address this distinction, by claiming that there are cases that support bans on viewpoint discrimination. Except, they get it backwards. The bans on viewpoint discrimination are against the government engaging in viewpoint discrimination, not in forcing private platforms to host all speech.

The brief attempts to tap dance around these different meanings of both “discrimination” and “viewpoint discrimination” by pointing to three things: (1) SEC restrictions on refusing to print shareholder proposals in proxies, (2) the Packers and Stockyard Act’s anti-discrimination clauses, and (3) a short list of PruneYard-like cases all revolving around shopping malls.

However, none of these make any sense here. The shopping mall cases we’ve already explained above. They are different, and even if you accept the brief’s description of “open to all,” we’ve already shown how Miami Herald says the results are different for organizations in the speech business.

As for the Packers and Stockyard Act, that too, has nothing to do with speech. Indeed, the law professors appear to be misrepresenting the law entirely. The prohibitions on discrimination in the law have nothing to do with viewpoint discrimination and the intentions of the law are about preventing monopolies and unfair competition through things like favoring some individuals for who they are, not what they say.

Finally, the SEC’s restrictions are the only ones that are actually speech related, but are very narrowly tailored to a very specific scenario in a highly regulated industry, where a proxy statement may be the only way to get across shareholder proposals to a specific audience: other shareholders who will need to make decisions based on those proposals.

So, these are not the same thing. They misrepresent the law. They misrepresent what was said in these historical cases. They misrepresent discrimination law and what “viewpoint discrimination” means.

We’re disappointed by this brief, because law professors should know better. It’s one thing for crackpots like former professor John Eastman to make legal arguments grounded only in wishes and rainbows. It’s another thing entirely coming from respected legal scholars. We know they want the government to be able to regulate social media companies more aggressively. Maybe a superficially clever argument clouded their better judgment.

But law professors have a professional obligation to describe the law as it is, not as we want it to be. It’s fine to argue that the Supreme Court should reinterpret the First Amendment to allow more speech regulation. It’s not fine to pretend that’s already the law.

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky. Mike Masnick runs this site.

There’s plenty of hypocrisy and bad faith to go around in the ridiculous Claudine Gay plagiarism scandal. While Gay’s accusers are right that she technically violated Harvard’s plagiarism rules by copying phrases either without quotation marks or required attribution, they don’t actually care about plagiarism, only “scalping” Gay. What’s more, their own plagiarism accusations have already started biting them back. And while Gay’s defenders are right that her offenses were comically trivial, because she copied mere banalities, Harvard students are punished severely for doing exactly the same thing. In fact, some of Gay’s defenders probably did the punishing.

A pox on both their houses. Plagiarism is fine, plagiarism rules are stupid, and the plagiarism police should mind their own business.

Everyone “knows” plagiarism is bad, but no one can provide a coherent explanation why. Some people say plagiarism defrauds the reader. Give me a break. Readers don’t care, or if they do, it’s only because they’ve been browbeaten into believing plagiarism is wrong. Others say plagiarism is like stealing. But no one owns ideas, and no one should own the words we use to express them, either.

I’ll be blunt. The plagiarism police are just intellectual landlords, demanding rent in the form of attribution. And plagiarism rules are just a sneaky way for authors to claim de facto ownership of ideas, while cloaking themselves in false virtue. When the plagiarism police cry, “J’accuse!,” we should respond with a raspberry. 

Don’t get me wrong, I’m not opposed to attribution. In fact, attribution is great, so long as it’s voluntary, rather than mandatory. Authors should absolutely attribute expressions and ideas, when they think it will help readers, or even just to honor an author they admire. But authors shouldn’t be required to attribute, unless they think it’s deserved. Let us cite out of love, rather than obligation.

Some people worry that eliminating plagiarism rules will harm disadvantaged authors, who often don’t get the credit they deserve. I doubt it. For one thing, plagiarism rules have existed for at least 2000 years. If they were going to protect disadvantaged authors, they would have done it by now. For another, plagiarism rules actually create a “Matthew Effect,” in which the most prominent authors get all the credit, and the disadvantaged authors get ignored. Why not adopt attribution norms that encourage citation of deserving disadvantaged authors instead of undeserving privileged ones?

You probably think I’m joking. I’m not. And I can prove it. I’ve published scholarly articles arguing that plagiarism rules are unjustified, authorizing plagiarism of myself, providing a “plagiarism license,” advocating a “right of reattribution,” offering to reattribute my own articles (please claim one!), using essay mills, plagiarizing every word (I stole the idea from Jonathan Lethem), proposing to teach law students how to plagiarize efficiently (in the practice of law, if you aren’t plagiarizing, you’re committing malpractice), and using AI to reflect on the legitimacy of plagiarism norms. I’m dead serious. Well, as serious as I get, anyway.

Think about it. We want to believe plagiarism rules protect original expressions and ideas. But AI shows us that most of what we produce is generic banalities. Why treat them like spun gold, rather than the chaff they really are?

We’ve now spent weeks debating how to interpret and apply plagiarism rules. If anything comes out of this idiotic “scandal,” I hope it’s that, when it comes to plagiarism norms, the juice definitely isn’t worth the squeeze. We should just admit they’re a waste of time and abandon them. We should stop punishing authors for “stealing” clichés, And we should especially stop punishing students “for their own good.” Plagiarism is also a way of learning, so we should encourage it, whenever it helps students learn more effectively and efficiently. 

By the way, every word of this op-ed is plagiarized. Or maybe it isn’t. I’m not telling, because it doesn’t matter.

Josh Hawley sucks. I disagree with him on about just about everything. And I am appalled by his support of the rioters who invaded the Capitol Building on January 6, 2021. It’s disappointing and shameful that a United States Senator would endorse a riot, especially a riot intended to challenge the indisputably legitimate election of the President of the United States. But the First Amendment says Hawley is entitled to his opinion, and he’s entitled to express it. And he’s entitled to quote other people to make his point.

Surprisingly, some people disagree. On April 10, Mickey H. Osterreicher published an op-ed in the Kansas City Star, arguing that Hawley shouldn’t and can’t use an iconic photograph of himself supporting the January 6 rioters to sell campaign merchandise. I endorse the shouldn’t in spades. Hawley’s actions were embarrassing, and it’s even more embarrassing that he’s capitalizing on them. But I disagree with the can’t. Hawley can absolutely use the photograph. And that’s a good thing.

In a nutshell, Osterreicher’s argument is that the photograph is protected by copyright, so the photographer (or copyright owner?) can dictate how it’s used.

No. That is ridiculously wrong. Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate a profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use copyrighted works in order to criticize them.

Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6 rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding fathers used to criticize loyalists in the Federalist Papers.

Fair use ensures copyright doesn’t violate the First Amendment. After all, copyright only regulates commercial speech. Why would anyone file an infringement claim, unless someone was competing with them? We all know that’s wrong. People use copyright claims because they want to silence people they dislike. That’s wrong. And it’s crummy. Some copyright lawyers like to pretend fair use is complicated. Give me a break. Every news organization relies on fair use every time it publishes a quotation.

Is there a copyright problem here? LOL. The photographer wanted to license, but only when convenient.

Let’s tell it like it is. This photographer wants to tell Senator Josh Hawley to shut up. And they want the government to tell him to shut up because they own a copyright on a photograph they took of him without his permission, and they don’t want him to use it.

It’s ok to think Josh Hawley sucks. But don’t be a landlord about it. You made your point, he’s entitled to make his.

Legal scholarship sucks. It?s interminably long. It?s relentlessly boring. And it?s confusingly esoteric. But the worst thing about legal scholarship is the footnotes. Every sentence gets one¹. Banal statement of historical fact? Footnote. Recitation of hornbook law? Footnote. General observation about scholarly consensus? Footnote. Original observation? Footnote as well, I guess.

It?s a mess. In theory, legal scholarship should be free as a bird. After all, it?s one of the only academic disciplines to have avoided peer review. But in practice, it?s every bit as formalistic as any other academic discipline, just in a slightly different way. You can check out of Hotel Academia, but you can?t leave.

Most academic disciplines use peer review to evaluate the quality of articles submitted for publication. In a nutshell, anonymous scholars working in the same area read the article and decide whether it?s good enough to publish. Sounds great, except for the fact that the people reviewing an article have a slew of perverse incentives. After all, what if the article makes arguments you dislike? Even worse, what if it criticizes you? And if you are going to recommend publication, why not insist on citations to your own work? After all, it?s obviously relevant and important.

But the problems with peer review run even deeper. For better or worse, it does a pretty good job of ensuring that articles don?t jump the shark and conform to the conventional wisdom of the discipline. Of course, conformity can be a virtue. But it can also help camouflage flaws. Peer review is good at catching outliers, but not so good at catching liars. As documented by websites like Retraction Watch, plenty of scholars have sailed through the peer review process by just fabricating data to support appealing conclusions. Diederik Stapel, eat your heart out!

Anyway, legal scholarship is an outlier, because there?s no peer review. Of course, it still has gatekeepers. But unusually, the people deciding which articles to publish are students, not professors. Why? Historical accident. Law was a profession long before it became an academic discipline, and law schools are a relatively recent invention. Law students invented the law review in the late 19th century, and legal scholars just ran with it.

Asking law students to evaluate the quality of legal scholarship and decide what to publish isn?t ideal. They don?t know anything about legal scholarship. They don?t even know all that much about the law yet. But they aren?t stupid! After all, they?re in law school. So they rely on heuristics to help them decide what to publish. One important heuristic is prestige. The more impressive the author?s credentials, the more promising the article. Or at least, chasing prestige is always a safe choice, a lesson well-observed by many practicing lawyers as well.

Another key heuristic is footnotes. Indeed, footnotes are almost the raison d?etre of legal scholarship. An article with no footnotes is a non-starter. An article with only a few footnotes is suspect. But an article with a whole slew of footnotes is enticing, especially if they?re already properly Bluebooked. After all, much of the labor of the law review editor is checking footnotes, correcting footnotes, adding footnotes, and adding to footnotes. So many footnotes!

Most law review articles have hundreds of footnotes. Indeed, the footnotes often overwhelm the text. It?s not uncommon for law review articles to have entire pages that consist of nothing but a footnote.

It?s a struggle. Footnotes can be immensely helpful. They bolster the author?s credibility by signaling expertise and point readers to useful sources of additional information. What?s more, they implicitly endorse the scholarship they cite and elevate the profile of its author. Every citation matters, every citation is good. But how to know what to cite? And even more vexing, how to know when a citation is missing? So much scholarship gets published, it?s impossible to read it all, let alone remember what you?ve read. It?s easy to miss or forget something relevant and important. Legal scholars tend to cite anything that comes to mind and hope for the best.

There?s gotta be a better way. Thankfully, in 2020, Rob Anderson and Trent Wenzel created ScholarSift, a computer program that uses machine learning to analyze legal scholarship and identify the most relevant articles. Anderson is a law professor at Pepperdine University Caruso School of Law and Wenzel is a software developer. They teamed up to produce a platform intended to make legal scholarship more efficient. Essentially, ScholarSift tells authors which articles they should be citing, and tells editors whether an article is novel.

It works really well. As far as I can tell, ScholarSift is kind of like Turnitin in reverse. It compares the text of a law review article to a huge database of law review articles and tells you which ones are similar. Unsurprisingly, it turns out that machine learning is really good at identifying relevant scholarship. And ScholarSift seems to do a better job at identifying relevant scholarship than pricey legacy platforms like Westlaw and Lexis.

One of the many cool things about ScholarSift is its potential to make legal scholarship more equitable. In legal scholarship, as everywhere, fame begets fame. All too often, fame means the usual suspects get all the attention, and it?s a struggle for marginalized scholars to get the attention they deserve. Unlike other kinds of machine learning programs, which seem almost designed to reinforce unfortunate prejudices, ScholarSift seems to do the opposite, highlighting authors who might otherwise be overlooked. That?s important and valuable. I think Anderson and Wenzel are on to something, and I agree that ScholarSift could improve citation practices in legal scholarship.

But I also wonder whether the implications of ScholarSift are even more radical than they imagine? The primary point of footnotes is to identify relevant sources that readers will find helpful. That?s great. And yet, it can also be overwhelming. Often, people would rather just read the article, and ignore the sources, which can become distracting, even overwhelming. Anderson and Wenzel argue that ScholarSift can tell authors which articles to cite. I wonder if it couldn?t also make citations pointless. After all, readers can use ScholarSift, just as well as authors.

Maybe ScholarSift could free legal scholarship from the burden of oppressive footnotes? Why bother including a litany of relevant sources when a computer program can generate it automatically? Maybe legal scholarship could adopt a new norm in which authors only cite works a computer wouldn?t flag as relevant? Apparently, it?s still possible. I recently published an essay titled ?Deodand.? I?m told that ScholarSift generated no suggestions about what it should cite. But I still thought of some. The citation is dead; long live the citation.

Brian L. Frye is Spears-Gilbert Professor of Law at the University of Kentucky College of Law

^{1. Orin S. Kerr, A Theory of Law, 16 Green Bag 2d 111 (2012). (?It is a common practice among law review editors to demand that authors support every claim with a citation. These demands can cause major headaches for legal scholars. Some claims are so obvious or obscure that they have not been made before. Other claims are made up or false, making them more difficult to support using references to the existing literature.?).?}