Free Speech Norms should be Different on a Law School Campus

Josh Blackman, a professor of law at South Texas College of Law, was recently heckled by law students during a federalist society event at CUNY School of Law.  The students protested and prevented him from speaking for about 8 minutes because, even though his planned talk was about free speech, he has written that he thinks DACA was an unconstitutional exercise of executive power.  The incident has generated a great deal of attention.  I think my colleague Erica Goldberg has the most balanced and informative post on the event and its First Amendment implications.  Many others have commented on whether the students violated the First Amendment or University policy.  Over at PrawfsBlawg, Rick Hills argues that the students displayed “immaturity” and “indifference to intelligent argument.”  I agree.  What really bothers me about the incident, however, is not any potential violation of First Amendment legal doctrine or simple student immaturity.

I think the CUNY students violated free speech norms for a law school campus.  A law school should be a place where speakers—especially law professors—are free to express their views on the law.  Because we are exposing our students to different arguments and teaching them to think critically about the law in class, I would expect the same in school-related activities on campus.  In fact, I would be deeply embarrassed if my students had done this to another law professor simply because they disagreed with his legal arguments, (especially when those arguments were not even the subject of the presentation).  As I explain after the fold, I think the students’ actions would have been much less troubling if Blackman had been invited to discuss his views on the policy merits of DACA or any other non-legal topic.  At a law school, however, free speech norms should protect people who are making unconventional legal arguments, even when those legal arguments could lead to offensive policy results.

Case in point, I think Mike Klarman has written the most innovative and important work in the field of U.S. legal history. He is also extremely liberal.  However, his work sometimes argues that bold Court decisions like Brown and Roe can undermine liberal causes (at least in the short term) by triggering counterproductive social backlash.  I could imagine someone being offended by this because in a sense it criticizes the law prohibiting segregation and protecting the right to choose.  But, in my view, Mike’s arguments should be taken seriously by anyone who wants to use the legal system to achieve progress on important social issues. (Full disclosure:  I consider Mike a mentor and a friend.)

I take it that the students at CUNY might be taking one of two positions:  (1) they should not have to hear offensive legal arguments; and/or (2) they should not have to engage with a speaker who has made offensive arguments in the past.  We should be teaching our students that neither of these positions is acceptable at a law school.

If students think that they shouldn’t have to hear legal arguments that offend them, then what happens when a professor calls on them to discuss Plessy, Korematsu, or Bowers?  If I called on a student to discuss one of those cases, I would think it would be totally out of bounds for the student to refuse to do so because the reasoning of the case is offensive.  Yes, the case is offensive, but law students need to try to understand offensive arguments so they can explain why such arguments are wrong.  If students won’t listen to offensive arguments, how will they ever fight injustice for their clients?

Law students should also be taught that they need to learn how to respond to people who have said offensive things in the past. Many lawyers will represent clients who have said or done offensive things or practice before judges who have made offensive rulings.  Sometimes a lawyer also needs to stand up to an opposing party or counsel who has said offensive things in the past.  This requires listening to them speak so that the lawyer can understand and refute their arguments.  Students should be learning how to do this in law school. 

I had thought it was no coincidence that these incidents typically happened at the undergraduate campus rather than at law schools.  Chris Roederer, who is joining Dayton’s faculty in the fall, argues in a forthcoming symposium paper for U. St. Thomas Law Journal that law school culture is well-suited to avoid the type of divisiveness over free speech issues that has plagued undergraduate campuses.  I think he is right, but only if we teach our students what it means to be in law school.

Comments

[Howard Wasserman]

Heather Gerken made a similar argument about why we hadn't seen similar protests at law schools. (http://time.com/4856225/law-school-free-speech/). Of course, a lot has changed in the 9 months since she wrote that.

[Jeff]

Thanks for the link Howard. I just read it over, and I agree with everything Gerken has to say. I highly recommend it to anyone who is interested in the topic.

[Steve L.]

While I agree with the general proposition about law school norms, I doubt that teaching would make any difference.

[J]

"I take it that the students at CUNY might be taking one of two positions: (1) they should not have to hear offensive legal arguments; and/or (2) they should not have to engage with a speaker who has made offensive arguments in the past. We should be teaching our students that neither of these positions is acceptable at a law school."

I don't think they're taking either of those positions. They're taking the position that "(1) we've already *heard* these offensive legal arguments, and this is our response to them; and/or (2) if the halls of power are being used to prop up these sort of arguments that lead to the deportations of our friends and family, they're not going to do so without our vigorous protest - a form of engagement, even if it doesn't look like the form the legal elite prefer."

Unlike a student who refuses to discuss Korematsu, Plessy, or Bowers, these students WERE discussing the ideas that Blackman put forward. If they weren't, then they wouldn't be protesting! This idea that protest somehow reflects a LACK of engagement is baffling to me.

I don't understand why simply being a law professor should give you the ability to make "unconventional legal arguments, even when those arguments could lead to offensive policy results" and *also* never be forced to be confronted with people who find those policy results (and the underlying arguments) offensive. (The latter part of that sentence is what you leave out of your analysis.)

I have no particular beef with Blackman, and think as far as people who have bad ideas go, he's relatively harmless. I wouldn't have chosen to participate in a protest. But I also have no sympathy for him - if the worst thing that happened to him was that his talk was delayed eight whole minutes, then he's doing just fine without needing my help.

[r]

Not really sure I understand this:

"As I explain after the fold, I think the students’ actions would have been much less troubling if Blackman had been invited to discuss his views on the policy merits of DACA or any other non-legal topic. At a law school, however, free speech norms should protect people who are making unconventional legal arguments, even when those legal arguments could lead to offensive policy results."

Seems a bit legal elitist: Other students can protest, but not law students - law students need to learn to respond to and confront offensive arguments.

Are you saying that legal arguments have some type of higher status? If Blackman had been giving a speech at a public policy school, wouldn't the students there have the same need to rationally evaluate and respond to offensive arguments as law students? Or are public policy students not expected to be able to "understand offensive arguments so they can explain why such arguments are wrong."

Why would it be ok for biology/psychology students to protest a speech on Herrnstein and Murray's Bell Curve, but not ok for legal students to protest similarly offensive legal arguments? Don't these students need to understand the offensive arguments and learn to respond to and confront them just as much, if not more than, law students?

[Anon]

"Don't these [other] students need to understand the offensive arguments and learn to respond to and confront them just as much, if not more than, law students?"

Not necessarily. These other students don't as far as I'm aware represent clients, for whom the lawyer's ability to understand and effectively respond to (rather than refuse to acknowledge) opposing arguments, even if offensive, is an essential professional skill necessary to provide effective representation in an adversarial system.

[Jeff Schmitt]

J: How can the students know that they have already heard the "offensive arguments" if they won't let the speaker speak? Yes, preventing Blackman from speaking is certainly a form of engagement, but it isn't the type of engagement with legal argument that we should expect from lawyers and law students. Lawyers should present reasoned argument instead of shutting down opposing legal arguments. Like I try to stress in the post, the fact that Blackman is a professor of law who was invited to speak on legal issues is important here. I agree that law professors are open to criticism and even protest. But they shouldn't be prevented from making legal arguments in a law school.

r: Of course, I think everyone should "think like a lawyer" and use reasoned argument most of the time. But I think there should be norms requiring this (1) of law students (2)on a law school campus (3)when engaging with a speaker who was invited to talk about the law. I am not a scientist, but I assume it would violate professional norms to protest and shut down the speech of another scientist giving a talk about science. If the scientist started talking about religion or politics, however, stopping the presentation might be OK.

[Jeff Schmitt]

Steve: I completely agree. I only meant that, as part of the law school, professors should reinforce free speech norms on campus.

[Enrique Guerra Pujol]

What about the Heckler’s Veto!

[twbb]

"This requires listening to them speak so that the lawyer can understand and refute their arguments"

One of the problems I consistently see with this argument is the assumption, often unwarranted, that protestors or objectors will be given a forum to "refute their arguments." In many cases this does not happen.

[ny law prof]

I graduated from CUNY Law School in the 1980's (third graduating class) and I'm sorry to say that this kind of intolerance is deeply ingrained in the culture of the school. I've since studied or taught at five other law schools and I've never encountered ideological repression at this level of intensity - from the student body - anywhere else. I should note that if I weren't on the left, generally speaking, I would never have attended CUNY Law in the first place.

[J]

"Lawyers should present reasoned argument instead of shutting down opposing legal arguments."

What twbb said in response to this is precisely correct - this assumes that students will be given a forum to present reasoned argument in response. I haven't seen in coverage of the event that this was the case. At any rate, your point is certainly true in a court of law. Blackman wasn't engaging in litigation, however.

As to your comment about how the students could know what the offensive arguments are if they won't "let" the speaker speak - if they didn't know what Blackman had said, then how in the world could they have been protesting him? Did they just throw dice and decide to protest a random speaker that happened to be on campus that day? Because if not, then they knew what Blackman said and chose to respond to it. (Whether it was precisely the thing he was going to say at his talk is irrelevant - the students weren't protesting what he was going to say, merely what he had already said.)

[Jeff]

J,

I believe my assumption was warranted in this case. Federalist society events like this always allow for Q&A with the students, and Blackman seems to have spent most of his time doing this at the event. Keep in mind too that the Federalist Society tried to find someone for Blackman to debate. More fundamentally, though, I am skeptical that the opportunity for student response during the presentation should be a required. Students can engage with the speaker's arguments in other ways, such as by writing him an email, speaking to him after the event, writing blog posts, op-eds in the school newspaper, inviting opposing speakers, open forums, etc. (Although I am trying to stay away from legal doctrine, this seems analogous to the FCC's old fairness doctrine. In Red Lion and Miami Herald, the Court struggled with whether the fairness doctrine is even allowed, much less required.)

In response to your second point, my understanding is that the students found something on the internet that Blackman had written that they disagreed with. They thus fell under my second category above: shutting down the speaker because he made a legal argument in the past that had a policy result they found offensive. As I explain above, I don't think this is appropriate behavior for law students, on a law school campus, for a speaker invited to speak on legal issues.

[Steve Diamond]

Of course, it's a myth that they shut down Blackman as I explained in a recent blog post linked under my name here. (I have tried posting this response before so I hope it is allowed through this time.)

[Jeff]

Steve, you might be right that it was more like 6 or 7 minutes in total since the video starts with him walking to the event, but I otherwise completely disagree with your interpretation of the video. The students were standing at the front of the room, next to Blackman, because they wanted to cause a disturbance. They intermittently booed him and otherwise interrupted him. Yes, it was not continuous, and Blackman could and at times did speak over them, but it was extremely disruptive. In my 3 years as a law student and now 6 years as a professor, I have never seen anything like it on a law school campus. The students don't need to literally scream over the speaker or block him from the room to effectively prevent him from speaking.

But the point of my post remains even if you are right about the video. Do you disagree with the substance of my post, or just my claim about the 8 minutes?

In response to your post, when did defending free speech norms on a law school campus make someone part of the "right wing crowd in and around academia"? Is Heather Gerken at Yale part of this crowd? (please see the first few comments). I am very liberal politically. Although I have been involved in a number of federalist society debates, I have always opposed the speaker from the federalist society. Liberals can and should defend free speech, especially at a time when the real power on the right is regularly attacking the press.

[Steve Diamond]

Of course, it's disappointing to have to admit that liberals, too, distort the facts but thank you for the clarification.

In any case, what I don't think is a good idea is having a debate about a ginned up incident.

I don't agree with the content of some of what the protestors had to say (they seem to have been influenced by critical legal studies which minimizes the importance of historic social advances like the rule of law), but I was not terribly bothered by what they did. Frankly, it's not clear to me that Blackman was terribly bothered either.

It was unusually disruptive but it was not extreme. They came in, they made their point and they left. I would have preferred that they chose a different way to express their views - as, in fact, at least one attendee did - by engaging in discussion with the speaker.

But, overall, the level of "disruption" was well below what the UK PM faces every week in Parliament. In other words, this was not an example of interference with anyone's right (leaving aside that they were not state actors) to free speech.