Surely, none will be surprised when I say I "agree" and I "disagree",
nor that I disagree twice.

      First, I will speak to the "agree".  ALSB ought defend itself.

      I assume, as a body of lawyers, each has pondered the appropriate and
measured response.  Surely, that includes the Executive Secretary
contacting the publisher of the JWR comments that more than a few of the
ALSB family have found to be offensive, and the Executive Secretary
requesting an opportunity to place ALSB in a correct light.  Equally
surely, the transactions triggered by Marianne's words
http://www.jewishworldreview.com/cols/jennings.html  are not devoid of free
speech issues and the free speech rubric recommends more speech as the true
counterbalance to offensive speech.  Marianne's speech could appear to
some, but not necessarily appear to all, persons of good faith as tinged
with libel, and some might even see actionable libel.  In the context of
libel, more speech also is recommended.  ALSB ought defend its good name.

      Dan, has ALSB contacted the publisher of the "Jewish World Review"
and asked for space in its next newsletter for a balancing view, as well as
a prominent link to ALSB's reply from the web page with Marianne's article?
Has that publisher yet replied to that request by ALSB?  (I could imagine
no comment has been made on ALSBTALK about such an effort to contact JWR
because the holiday weekend has interrupted ordinary business operations in
multiple workplaces, and thus the negotiations for space still are in a
delicate stage.)

      Second, I will speak to the "disagree".

      This is a free speech issue precisely because the content of the
speech is what motivates the diverse calls for action.  Surely, Marianne's
voluntary assumption of membership [a] in ALSB; [b] on the Executive
Council; and [c] as Editor of JLSE diminishes her freedom of speech
commensurate with her increase in legal duties to ALSB.  What then are the
legal parameters of distasteful speech that might be uttered prior to
triggering removal on the basis of that content?  There are limits, but
those are found external to the organization in statutory and common law,
and those external limits are sure to be so flexible that Marianne's
comments have not crossed those lines.  If the scope of permissible dissent
is not so broad as to easily encompass Marianne's speech, then is genuine
dissent available within ALSB?  I believe, lawfully, ALSB could impose
reasonable time, place, and manner restrictions on the public utterances of
members of the Executive Council, but ought not.  Additionally, even or
especially after seeing this particular sample of distasteful speech, I
suspect restrictions that could clearly bar that sample could not gain the
approval of either the ALSB membership or the ALSB Executive Council.
Accordingly, any response by ALSB to dissent similar to Marianne's, based
on the content of that speech, ought be constrained to counter balancing
increments of free speech and to electoral processes in the future.  Dan's
clarification email appears consistent with the above.

      Third, ALSB as an organization confronts a question of fact.

      Did, via her JWR article, Marianne resign her membership in ALSB?  If
the answer to that question of fact is "Yes", then the companion
consequences of loss of her JLSE editorship and ex officio membership on
the ALSB Executive Council ought to be expected.  (Given Opderbeck's
appraisal, I suspect logic rather than the ALSB Constitution and Bylaws
will command a direction of causation that runs from resignation from ALSB
membership, to loss of ex officio EC membership, and only then to the loss
of editorship.)  In some respects, unquestionably, Marianne's article was
public speech.  But, was it public speech in all respects?  What was in her
heart?  As she wrote to the web did she personally (momentarily let us set
aside reasonably) expect ALSB the corporation to receive her speech?  Were
her words in her article a clear and unambiguous termination of her ALSB
membership?  Marianne is no stranger to corporate governance and knows the
strongly preferred formality for effectuating a resignation.  Did she have
either or both the subjective intent or the objective intent to resign from
ALSB when she published her JWR article?  That is a question of fact.
Surely, if she sent the Executive Secretary a memo no longer than "I resign
my ALSB membership.", then the Executive Secretary ought to immediately
take those steps necessary to formalize her concurrent disenfranchisement
from the ALSB Executive Council and her termination as Editor of JLSE.
But, do her words in her JWR article achieve that fact?

      (Dan, I have been working on this email for an hour or so, and thus
your clarification email about emails between all members of the Executive
Council arrived as I was finishing this email.)  Dan, have you sent
Marianne a letter by registered mail: [a] seeking a formal declaration of
her resignation of her ALSB membership, [b] seeking return of ALSB property
in her possession (e.g., JLSE submissions) if she has in deed resigned, [c]
seeking her cooperation in transitioning the editorship of a journal she
clearly has loved, [d] thanking her for her service, and [e] regretting we
are no longer compatible?  Have you sent companion registered letters to
each of the other members of the ALSB Executive Council?  As the custodian
of ALSB's corporate ego, if she had sent you an email no longer than "I
resign my ALSB membership.", with no additional explanation, would you have
sent similar registered letters?  Are not the above registered letters the
sort of formal tasks required of the ALSB Executive Secretary when a cloud
is placed on the membership of the Executive Council?

      (Recall, this was written prior to Dan's clarification email.)
Anticipating the future, if Marianne chooses to be incommunicative in
response to such a registered letter, then I believe all ALSB members would
agree that the Executive Council would be right and just to conclude that
the words in Marianne's JWR article did equate with her resignation of her
ALSB membership, rather than her words being more aptly seen as private
speech and an expression of frustration by Marianne to one set of friends
that another set of friends has generated in her a resignation of an
entirely different sort.  If, instead, Marianne sends an unequivocal
rejection of the implication that Marianne had resigned via her JWR
article, what then is the answer to the question of fact?  If there is any
disinclination to acknowledge the possibility of pique generating poorly
chosen words, is that disinclination have its origin in the content of her
speech?  If "Yes", then we have a free speech issue.

      As an aside, and from an entirely different direction of ethical
quandary, I am a member of another organization that this year created two
classes of membership so as to hold on to as many members as it could given
a shift in the ethical center of the organization.  That group created a
journal subscription only membership (e.g., university libraries and
disaffected members) and a voting membership (e.g., humans still sharing an
affinity).  Membership, in that group, is not required for attendance at
and participation in most aspects of, that groups annual meeting.

      I urge ALSB to not go that route.

      We lose much when we lose the annoyance of dissent in our face.
While far more comfortable to construct local bastions of purity, the world
is not made up solely of sweetness and light.  If all our social structures
are distilled into self referential purity, then neither the melting pot
nor the tossed salad will be on the table.  One of the clear difficulties
of American politics is the narrowing of the political assemblages into
homogenous clusters.  While narrowing fosters apparent increases in some
definition of purity, quality suffers.  Recall the advice of our founders:
E pluribus unum.  http://www.greatseal.com/mottoes/unum.html

Michael

Professor Michael J. O'Hara, J.D., Ph.D.
Finance, Banking, & Law Department
College of Business Administration
Roskens Hall 502
University of Nebraska at Omaha
Omaha  NE  68182
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(402) 554 - 2823 voice  fax (402) 554 - 2680
http://cba.unomaha.edu/faculty/mohara/web/ohara.htm