Free Speech Rules, Free Speech Culture, and Legal Education: Some Opening Thoughts

I was invited to participate in a Hofstra Law Review symposium on free speech in law schools, which will be happening in February, and I thought I'd serialize my current draft article; there's still plenty of time to improve it, so I'd love to hear people's comments. Here are some opening thoughts, though you can read the whole PDF, if you prefer:

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Introduction

The lawyer's job is to persuade people, including people who may disagree with the lawyer. To do this, lawyers must be able to connect with people whose views may be very different from their own.

And this is so even if the lawyer's views are held by the majority: Sometimes, for instance, the lawyer must persuade all members of a jury. Even in a solid blue state, the lawyer may need to persuade some red jurors, and vice versa.[1] Even in a jurisdiction where most judges are liberals, the lawyer may draw a conservative judge, or a majority-conservative panel. A lawyer will also often need to persuade opposing counsel; to build trust with a reluctant witness; and of course to interact productively with the lawyer's own client. All of them may sharply disagree with the lawyer on important matters.

One critical function of law schools is to help students learn the skills that they can use to persuade people with whom they disagree. As importantly, law schools must help students learn the habits and attitudes required for that—and to unlearn the habits and attitudes, which are so much a part of human nature, that tend to undermine such connections.

It is of course human nature to categorize the world into us and them, the good and the bad, the "enlightened" and the "deplorable." It is human nature to let these categorizations leak into our assumptions about people, into our decisions about whether to listen to people, and into our manners when we speak with people. It is human nature to resist being exposed to arguments that challenge our deepest beliefs, or to facts that we may disapprove of or find offensive. That human nature, though, interferes with our effectiveness as lawyers.

My claim in this Essay will be that creating a culture of free speech and openness to contrary ideas at law schools—including on the most controversial of topics—is vital not just for democratic self-government, the search for truth, self-expression, and the like, but also for effectively training future lawyers. Law schools should do all they can to communicate this point to students, in thought and action.[2]

I. Teaching for Effective Lawyering

To be an effective lawyer requires more than just knowing the legal rules, or even "thinking like a lawyer" in the sense of understanding the structure of legal categories. It requires a particular set of skills, habits, and attitudes that don't come naturally—indeed, that may be contrary to certain facets of human nature.

A. Understanding the Other Side's Best Arguments

To begin with, lawyers have to understand the best versions of the other side's best arguments, so they can better rebut them.[3] Even when the other side doesn't make the best arguments, good lawyers must anticipate the arguments that decisionmakers might come up with on their own.

The need for this seems obvious to trained lawyers. But actually being able to do this is often quite difficult. It's human nature to want to avoid arguments that challenge one's positions, and especially one's deeply held values. Considering such arguments—which, by hypothesis, one considers to be deeply wrong, morally or factually—can make one angry. Thinking about them, and taking them seriously, is an unpleasant experience (indeed, can make one feel dirty or disloyal). The temptation is not to consider those arguments, to gloss over them, and at least to subconsciously underestimate them. And this attitude is reinforced by social norms in certain groups, whether liberal, conservative, religiously defined, or otherwise.

But a lawyer must resist that temptation, just as a doctor must resist the common human revulsion towards disease and towards those who are suffering from certain diseases, or a psychiatrist must resist the natural human revulsion towards certain kinds of violent or otherwise abusive fantasies or experiences that a patient might disclose. That doesn't mean that professionals must change their moral views—and it's not law schools' job, I think, to improve our students' morals. But professionals must make sure that their moral judgments don't interfere with their effectively serving their clients. And law schools must train students to constantly consider and confront the best arguments on both sides of the question, whatever the moral merits or demerits of the two sides.

B. Understanding How People with Very Different Views See the World

More broadly, lawyers need to be able to step in the shoes of decisionmakers (judges, jurors, legislators, administrative agency officials, voters, clients, or negotiation counterparties) and see the world from their perspective. Given their views of the world—moral, empirical, religious—how can you bring them around to your conclusion on the particular question they're facing?

Human nature makes this hard. Part of this stems from the normal difficulty of setting aside one's own preconceptions, and asking not "is this argument persuasive?"—which too often comes down to "is this argument persuasive to me?"—but "is this argument persuasive to someone very different from me?"

And it's especially hard to see the world from the perspective of people who, by your lights, are wrong or downright stupid or evil: bigoted, fascist, unpatriotic, Marx­ist, supporters of slavery, supporters of genocide. Yet that's what one has to do. We might think that half our jury are racists or sexists or religious bigots who are prejudiced against our clients. Who knows, we may even be right. Yet we still have to empathize with their perspective enough to figure out what facts or arguments might reach even them. Law schools must train students in the habits and attitudes needed to do this.

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Still to come, in future posts (or you can see it now in the PDF):

I. Teaching for Effective Lawyering
C. Being Willing to Make Arguments That One Disagree With
D. Tolerating People Who Hold Views One Condemns
E. Learning from People We Disagree With
F. Building Coalitions
G. Unflappably Confronting Unpleasant Facts and Arguments
II. Specific Practices
A. Protecting Student Speech (and Speech of Invited Speakers)
B. Responding to Unpopular Views in Ways That Promote Discussion
C. Evenhandedly Encouraging Debates or Conversations Among People Who Disagree
D. Organizing Law-School-Sponsored Events That Model Thoughtful Disagreement on Controversial Topics
1. The value of law-school-organized events
2. The insufficiency of leaving such debates to the classroom
3. Focusing on real current debates
E. Inviting Leading Successful Advocates from All Points on the Ideological Spectrum
F. Encouraging Faculty to Express Dissenting Views
III. Responses to Some Possible Objections
A. Student Upset (Especially as to Views That Are Seen as Derogatory of Their Identities)
B. Vulnerability of Powerless Minority Groups
C. Risk of Persuasiveness
D. Risk of "Legitimizing" Certain Perspectives
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side

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[1] This is true even for civil jury verdicts; as of 2006, the federal system and over a third of the states required civil jury unanimity for a jury, and the rest required a supermajority (2/‌3 to 5/‌6). Shari Seidman Diamond, Mary R. Rose & Beth Murphy, Revisiting the Unanimity Requirement: The Behavior of the Non-Unanimous Civil Jury, 100 Nw. U. L. Rev. 201, 203 (2006).

[2] I also support free speech and open-mindedness in other educational institutions; but the arguments in this article are specifically focused on law schools.

[3] This point dates back to at least the ninth century. See Charles Pellat, The Life and Works of Jahiz 71 (D.M. Hawke trans. 1969) ("a man who understands his opponent's arguments better than he does is in a better position to select his own arguments, can go deeper into the various aspects of his case, and is better equipped to reach his goal").