The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In 2015, I wrote a blog post titled, "For Free Speech, Today's College Students Are Tomorrow's Law Students, Lawyers, Politicians, and Judges."
I pay very close attention to what today's college students think and do, because today's college students will becomes tomorrow's law students, the next decade's lawyers, and the next generation's politicians and judges. With respect to the First Amendment, I don't pretend for a moment that today's prevailing views of free speech and free exercise will remain constant.
Five years later, I am even less optimistic. The trend on college campuses, and now law school campuses, is towards greater control of unpopular speech. These incidents are not isolated. Courts today only provide protection for speech, because today's judges came of age in an era where there was a general consensus on free speech. Future judges may not share these values.
Greg Lukianoff and Adam Goldstein of FIRE sound a similar alarm in the WSJ:
Cancel culture notwithstanding, legal commentator Ken White argues that "this is a golden age for free speech in America." For decades, he notes, the Supreme Court has protected all manner of objectionable speech, from burning the American flag to homophobic protests outside servicemen's funerals. That's true—but those victories rest on a broad cultural consensus. If campus norms continue to displace free speech culture, judges and lawyers will eventually start to ignore the First Amendment or, worse, chip away at it until it is meaningless….
As students graduate, cancel-culture norms spread beyond campus, to newsrooms, corporate boardrooms—and sooner or later courtrooms.
We are already seeing fractures on the Roberts Court with respect to free speech. Justice Sotomayor wrote separately in Iancu v. Brunetti, and sent some signals about hate speech, with respect to racial slurs. Justices Kagan and Ginsburg did not join her. (The New York Times confirmed my speculation that RBG is not nearly woke enough).
I suspect a prerequisite to be on a President Biden's short list will be speaking out against hate speech and other related issues.