Paul L. Caron

Friday, March 18, 2022

Lat: Is Free Speech In American Law Schools A Lost Cause?


David Lat (Original Jurisdiction), Is Free Speech In American Law Schools A Lost Cause?:

Hastings YaleRecent controversies at UC Hastings and Yale Law—Yale, shocking, I know—don't provide much reason for hope.

On March 1, at the UC Hastings College of the Law in San Francisco, the law school’s chapter of the Federalist Society attempted to hold an event titled “The Battle Over Justice Breyer’s Seat.” Planned months in advance, it was going to be a debate about the future of the Supreme Court between the libertarian/conservative legal scholar Ilya Shapiro, executive director of the Center for the Constitution at Georgetown Law (currently on leave), and the liberal/progressive legal scholar Rory Little, the Joseph W. Cotchett Professor of Law at UC Hastings.

After the event was scheduled but before it took place, Shapiro issued his controversial and poorly worded “lesser black woman” tweets about the SCOTUS nomination process, which made him a reviled figure on the left. So when he flew across the country and appeared at the UC Hastings event, he was shouted down by angry students who accused him of sexism and racism. Whenever Shapiro tried to speak, student protesters drowned him out with shouting, table banging, profanity, and personal insults. ...

I was deeply dismayed by what happened at Hastings. So was UC Hastings Chancellor and Dean David Faigman, who sent out an eloquent email strongly emphasizing the law school’s commitment to both free speech and diversity, equity, and inclusion. As Dean Faigman wrote, “We may not support Mr. Shapiro’s previously expressed views—some of which we personally find deeply offensive—but we support his right to speak on our campus.”

I hoped that the Shapiro shout-down was an aberration, an isolated event that would not be repeated at other law schools. Unfortunately, less than two weeks later, something similar almost happened at… yes, you guessed it, Yale Law School [Yale Law Students Protest Alliance Defending Freedom Speaker At FedSoc Event, Prof Tells Them To 'Grow Up'; Armed Police Presence Triggers Backlash]. ...

The protesters were disruptive at the start of the event, both inside the classroom and after they repaired to the hallway. But unlike the protesters at Hastings, they did calm down (eventually), and they did not succeed in “canceling” the Yale event, which moved forward to completion.

Credit for this should go to Professor Kate Stith, moderator of the Yale FedSoc event, who had the unenviable task of dealing with this fraught situation. As you can see in video footage (via the Free Beacon), after the protesters started getting noisy inside the classroom, claiming that this was their form of “free speech,” she reminded them of the school’s actual free-speech policies (and told them that they needed to “grow up,” for which she was jeered). She informed the protesters that they could either (1) stay in the classroom, remain quiet during the speakers’ presentations, and ask questions during the Q&A, or (2) they could leave the classroom and gather in the hallway, as long as they did not disrupt the event. After Professor Stith issued this warning, most of the protesters left the room and went out into the hallway. ...

[H]ere’s my big takeaway from the latest YLS controversy: the free-speech problem in our law schools isn’t just about administrators, and they can’t solve the problem by themselves. The problem goes much deeper and is rooted in the mindset of students—and by this I don’t mean any particular class of students, since they all eventually graduate, but law students more generally in the year 2022. ...

As a gay man who is in a same-sex marriage and raising a son with my husband, I strongly disagree with ADF’s views on same-sex marriage and parenting. But I strongly defend the right of its leaders to speak and to participate in public events, and I think the treatment that Kristen Waggoner received at YLS was disrespectful and wrong. ...

So here’s what I’m left wondering: can free speech at Hastings Law and Yale Law, and at U.S. law schools more generally, be saved? Or is the situation simply too far gone?

While in law school, members of the left might welcome an environment that takes a majoritarian approach to free speech, where the majority—i.e., liberals and progressives, at least at most U.S. law schools—gets to shout down the minority. That’s one possible approach to speech issues—not the one endorsed by First Amendment experts like Professors Volokh and Wasserman, but an approach.

Beyond the ivory tower, however, in a nation that’s much more ideologically balanced—and in some parts of the country, dominated by conservatives—would members of the left want a majoritarian approach to free speech? Would they want an environment where a majority can ban the teaching of critical race theory, the reading of Toni Morrison novels, or a particular approach to sex education? My guess is no. ...

When these law students become lawyers, and many of them have to go to court or a negotiating table, they will have to listen to the other side—whether they like it or not, and no matter how “offensive,” “triggering,” or “violent” they find the views of the other side to be. Shouting down opposing counsel, then claiming that you’re just engaging in your own form of “free speech” or “zealous advocacy,” will not fly in the world beyond Yale Law School.

I’ll close with the words of Kristen Waggoner of the Alliance Defending Freedom. She and I disagree strongly on many, many things, but I agree with what she said after her visit to YLS: “Yale Law students are our future attorneys, judges, legislators, and corporate executives. We must change course and restore a culture of free speech and civil discourse at Yale and other law schools, or the future of the legal profession in America is in dire straits.”, Federal Appeals Judge Suggests Yale Law Protesters 'Should Be Disqualified for Potential Clerkships':

Slate senior writer Mark Joseph Stern tweeted Thursday that U.S. Court of Appeals Senior Judge Laurence Silberman of the D.C. Circuit had sent an email to the listservs for all Article III judges in the U.S., which read: “The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion on free speech prompts me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted. All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified for potential clerkships.”

Jonathan Turley (George Washington), Yale Law Students Disrupt Conservative Speaker . . . Then Object to the Presence of Police as Creating an Unsafe Environment:

What is also notable is the silence of most of the faculty at Yale. That is also a common factor in these attacks on dissenting viewpoints on campuses. The message is clear. Events featuring dissenting views, particularly from conservative or libertarian speakers, will not be tolerated.

Eugene Volokh (UCLA), David Lat on the Latest Yale Law School Disruption of a Speaker:

A superb analysis, at his Original Jurisdiction newsletter. Read the whole thing.

Prior TaxProf Blog coverage:

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