The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


"For Free Speech, Today's College Students Are Tomorrow's Law Students, Lawyers, Politicians, and Judges"

We should not take for granted that the judges today generally agree on free speech culture.


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.

NEXT: Mrs. World 2018 vs. Mrs. World Libel Lawsuit

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I mean, sure, there are lawyers in their late 20's now who eventually may bring anti-speech norms to the courts. But they aren't there yet. I still think there's a pretty strong consensus among most judges of both parties in favor of a broad interpretation of the First Amendment.

    1. Dilan, it was just ~65 years ago Brown was decided, and 100 years prior to that, Scott was decided. Social mores change in time; that is as certain as the sunrise. The judicial interpretation of 1-A will change as our social mores change.

      Based on what I see today, the outlook doesn't look too good for 1-A.

      1. I've come to the conclusion, (Did some time back, actually.) that the America I was born in is doomed. We didn't just let the barbarians in the gate, we then hired them to raise our children.

        I'm just hoping we can plant some good space colonies to carry on the tradition of liberty, before it all goes down the tubes.

        1. Brett....I am somewhat more optimistic. Why? Ideas do not die. What I mean is that the ideas that underlie the founding of America (reflected in the D of I and our Constitution) will not die. That spark will always be there.

          It is the suppression of our liberties aspect that I fear.

          1. I forget the exact quote, but it was something to the effect that, "You can't kill an idea, but you can drag into an alleyway and beat with a rubber hose anybody who talks about it."

            We're transforming into that sort of society, and not slowly.

            1. I am a long term optimist and short term pessimist. The trend ever since Gutenberg has been decentralized power and expanded access to information. I don't see that being reversed.

              At the same time, I detest what these clowns today are doing with their cancel culture, antifa, and everything else snowflakey. Moral cowards the lot.

              How do I reconcile this paradox? Two things: One, cancel culture is a coward's culture. Antifa is the same. They are destructive, not constructive. They haven't got a creative bone in their body. These are not the attributes of leaders. Even Hitler and Stalin had things they wanted to make; cancel culture and antifa ave made nothing but trouble and safe spaces.

              Second, I believe the internet, and especially the Dark Web and crypto currency, will find ways around government control, and those people who believe Twitter, Facebook, and Google are part of that censorious process and easily include MegaCorp in that. I believe more and more of daily life will take place beyond the purview of government, including jobs and entire social infrastructure. Look at how much of daily life is already there -- not much in the bigger picture, but still there, and unstoppable. All these idiotic lockdowns, governors screaming about arresting people who hold backyard bbqs, bars that open without permission and stay open for surprisingly long times. 3D printers will make gun control and other materiel control obsolete. As frightening as I find Big Brother trending over the last few decades, the amount of snooping and permitage and all that, they still can't control such basics as stopping pubic funerals.

              The war on drugs is perhaps the prime example of how little control government actually has. Every kind of drug is cheaper and more widely available than 50 years ago, even in the most control freak dictatorships. The Soviet Union couldn't stop fax machines spreading the word, even with their vast bureaucracy.

              My long term optimism remains.

        2. "the America I was born in is doomed"

          The America was born in was flawed in important ways. Perhaps you didn't notice -- or mind -- much because because those flaws involved mistreatment focused on blacks, women, Jews, gays, agnostics, Muslims, the poor, Hispanics, and others.

          (You probably weren't around for the most intense period of treating the Irish, blacks, Italians, Asians, women, gays, atheists, and others like dirt.)

          America has improved. Some people just can't stand all of this damned progress.

          1. America has improved in some regards, and declined in others. It's as wrong to deny the loses as it is to deny the gains.

    2. It's entirely possible that people in their twenties are smart enough to know the difference between diversity and tolerance-promotion at universities and free speech law as it has evolved over the past century. They may not be as quick as Josh (or as blockheaded, or as disingenuous, etc.) to conflate one standard for the other.

  2. Let's just remove a few hateful words from our discourse, such as ____, ____, __________, ______, and so on.

    1. Oh, I almost forgot _____, ________, and ______.

  3. Makes a good case for defunding higher education. Close down the leftist indoctrination centers.

    1. Just stop backing student loans; problem solved.

      1. That is my solution too. Stop encouraging and almost mandating that all these kids waste four years of their lives in meaningless study of meaningless subjects, where their bored brains seek something, anything, interesting and exciting. I do not think it is a coincidence that there are so many pointless degree programs along with so many bored students, like 3rd graders seeing patterns in clouds. It is another reason I am not worried for the future. As soon as these kids get their pointless diplomas and get a job, the endless snowflake distractions do in fact end and reality finds better ways to spend money and raise a family. Those who don't, who refuse to grow up, either become the next generation of Marxian professors in dead-end academic careers, or wander like modern hippies.

      2. Student loans are essentially government subsidy, but probably the worst kind. Most debt you can at least discharge in bankruptcy, but because the government backs these loans they also use the power to keep them out of bankruptcy to reduce the risk of student loans. Then asking an 18 year old to make financial decisions that will put them in debt 50-100K under these conditions in unconscionable.

  4. I'm no neckbeard atheist but from a societal perspective we're in a similar position to the late Roman era when a funny little cult came out of nowhere to fill the vacuum left in a society who's religious and cultural traditions have decayed into secularism and decadence and began overturning everything. Wouldn't be surprised if we're heading into another Dark Age but where obsession with social justice concepts like intersectionality and word treadmilling replaced fasting and flagellation.

  5. Just so Josh knows, what he is describing is called "pipeline theory".

    For example, it took a couple decades for women/minorities to get filter in numbers into law related fields once the opportunities opened up to them. Also, we are seeing, as others noted, the types of "politically correct" folks mocked on Kids in the Hall and in the 1994 movie PCU are now out into the workplace in corporate America, ruining the country one HR department at a time.

    1. As well as rioting in the streets.

      I don't think there are enough of the latter to actually threaten the country with anything worse than the Irish "Troubles", but it's going to be really hard to do anything about them with the less violent worming their way into power and running interference for them.

      And if the Democrats win this November, they might issue, "Job done, stand down." orders, but will the mobs listen?

      1. Will they listen? Anitifa well, yes. They will reappear for the midterms in 2022. But the inner city blacks in Chicago (and elsewhere)? No, they won't.

      2. Keep huffing glue in your parents' basement, Brett, ain't no one coming for you.

  6. Just a reminder; every one called us "crazy gun nuts" when we said if the second amendment is eroded, the first amendment will be next.

    "Told you so!"

    1. Another reminder: Sheriff John Wayne was collecting the firearms of visitors outside the saloon door, for safekeeping at the sheriff's office until the owners left town or slept it off, he was a godless commie gun-grabber!

      1. If you can't see the difference between "checking your weapons at the door" before drinking and modern gun control you're even stupider than I originally thought.

  7. "today's college students will becomes tomorrow's law students . . ."

    And yesterday's bad English students become today's bloggers?

  8. "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"

    If those things make it a "Golden Age", I'll pass.

  9. You're absolutely right, Josh. We should be doing a better job of controlling speech and discourse on university campuses so that it favors your policy preferences, rather than those of the enemy.

  10. The premise of this fear by Blackman is that judges rule based upon personal values and not some objective interpretation of the law.

    Josh, welcome to the world the rest on the Right have acknowledged for a while now.

    We don't have a justice system anymore, we have a political one masquerading as a judicial one.

Please to post comments