Free Speech Rules, Free Speech Culture, and Legal Education: Specific Practices

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 follow-up thoughts on what I think law schools should try to teach, though you can read the whole PDF, if you prefer:

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Law schools, then, need to act in ways that promote these important—but often counterintuitive—skills, habits, and attitudes. When they fail to do that, they fail their students.

And the students who suffer most from law schools' failure in such matters are the students who belong to the majority ideological group; today, that is mostly students on the Left. Students on the Right get to hear contrary views, and get to refine their own arguments (which they are likely to seek out, given their emotional investment in their own beliefs) and to learn how to respond to the Left's arguments. Students on the Left, however, are more likely to have heard only their side's arguments on many topics, and thus to be less prepared for the best arguments that the Right has to offer.

A. Protecting Student Speech (and Speech of Invited Speakers)

One obvious step to educate students in the habits and attitudes discussed in Part I is to protect speech by students and by invited speakers, including speech that expresses views that sharply diverge from local majority views. This is a First Amendment obligation for public law schools, and it's an academic freedom obligation for private law schools that claim to be committed to academic freedom, rather than to promoting a particular belief system. Such speech should certainly not lead to punishment of the students who speak, or who invite the speakers. But it should also be affirmatively protected from attempts to shout it down, and of course from attempts to suppress it by threats of violence.[2]

Indeed, schools should point out that students who disrupt such events aren't just interfering with the rights of the speakers—they are also interfering with the rights of the students who are there to listen, and indeed with those students' education. And schools should discipline students who disrupt such events. Naturally, they should impose such discipline regardless of the event's ideology, whether the event is seen as, say, for or against transgender rights, for or against abortion rights, for or against critical race theory, and so on.

B. Responding to Unpopular Views in Ways That Promote Discussion

Now of course law schools themselves also have the right to speak. Private law schools have a First Amendment right to speak; public law schools at least have the power to speak, at least absent any restrictions imposed by their state legislature. Faculty members also have such a right.

At the same time, law schools should recognize that their speech can understandably deter students. Gissel Packing Co. v. NLRB, a labor case, offers a helpful analogy. In Gissel, the Court recognized that employer speech, though generally protected by the First Amendment, is particularly likely to be seen as implicitly threatening by employees who realize that they are within their employers' power: Labor laws "take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear."[3]

Likewise, law schools should take into account that law students—concerned about their own economic and professional future—might interpret law schools' condemnations of speakers, especially when couched in terms such as "hate speech," as implying that students should view those speakers' views as beyond the pale. And law schools should also recognize that their speech can reinforce habits of closed-mindedness and unwillingness to listen.

Consider, for instance, Kansas University Law School's condemning an Alliance Defending Freedom speaker on the grounds that ADF—which has litigated and advocated against some gay rights and trans rights claims—engages in "hate speech" and that its values are "antithetical to the inclusion and belonging we strive to achieve on campus."[4] This sends a powerful message to students: If they invite such speakers, and perhaps even if they listen thoughtfully to those speakers, they themselves are hateful people who may merit being shunned, just as the university seems to be urging people to shun the ADF itself. But beyond that, the message urges students not to engage with ADF's arguments, and not to take those arguments seriously.

Yet the ADF is an immensely successful litigation organization, which has won many cases both in the Supreme Court and elsewhere.[5] It also has significant influence in legislative and political debates. Perhaps they shouldn't have won. Perhaps they deserve to lose, at least on the issues to which the law school was referring. But they are formidable adversaries, who obviously know much about effective lawyering for their causes.

Anyone interested in lawyering related to those causes can gain much from hearing from ADF lawyers, from asking them questions, and from thinking hard about their arguments and about how they frame those arguments. Students who hope to effectively oppose the ADF, for instance as to gay rights or transgender rights, should be encouraged to pay more attention to them rather than less. And even students who don't expect to practice in those fields have much to learn from how such successful lawyers craft their arguments.

To be sure, law students could learn about the ADF by reading its briefs, or watching videos of its oral arguments. But of course that's true on all topics, yet what law school says, "We don't need to organize talks, or fund talks by student groups, on (say) environmental law or technology law or bankruptcy law—students should just read a good book or brief on the subject, or listen to an oral argument"?

Law schools realize that watching a talk or a conversation, and having an opportunity to ask questions (or even just to listen to responses to classmates' questions), helps give an extra perspective that pre-prepared materials don't offer. And law schools realize that students are already overwhelmed with readings, and are just not that likely to do a lot of extra reading—but might be open to showing up to a talk. The same applies to talks by controversial advocates on controversial topics.

I would prefer that universities and their departments generally not take stands on various controversial public policy questions or legal questions. (The University of Chicago's Kalven Report speaks well to that point.[6]) But if a law school wants to express its views supporting gay rights or transgender rights on occasion of such a talk, it should do that in a way that encourages rather than discourages engagement, for instance:

As Dean of this law school, I support gay rights and transgender rights, and the law school is committed to treating students fairly, without regard to sexual orientation or gender identity. But obviously this is a highly controversial topic; rightly or wrongly, many of our fellow citizens hold opposing views (and that's even more true of many of our fellow humans in other countries throughout the world).

The ADF, agree with it or not, is an extremely effective advocate for its views. I encourage you to come listen to Jordan Lorence's presentation, even if—perhaps especially if—you want to learn how to more effectively rebut his arguments, and how to become an equally effective and accomplished lawyer for the other side.

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

II. Specific Practices
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] Michael McConnell has noted this before.

[2] See, e.g., Robby Soave, 'Grow Up': Yale Law School Students Interrupt Event, Demand Right to Talk over Speakers, Reason, Mar. 16, 2022, 5:30 pm, https://‌perma.cc/‌ZN4V-2CM8; Samantha Harris, "Stop Debating": CUNY Law Students Disrupt Speaker and His Critic, FIRE, Apr. 12, 2018, https://‌perma.cc/‌LP58-9EAP; Robby Soave, UC Hastings Law Students Silence Conservative Speaker, Demand Anti-Racism Training, Reason, Mar. 2, 2022, 6:02 pm, https://‌perma.cc/‌3P8S-C3LX.

[3] 395 U.S. 575, 617 (1969).

[4] Patrick Richardson, KU Law School Says ADF Discussion of the First Amendment Is "Hate Speech," Lion, Oct. 26, 2022, https://‌perma.cc/‌J8JT-594G; E-mail from Leah Terranova to KU Law Students, Law Administration, and Law Faculty, Oct. 20, 2022, 10:50:33 am, https://‌perma.cc/‌2WGL-US9A.

[5] See, e.g., Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021); National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018); Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018).

[6] Kalven Committee, Report on the University's Role in Political and Social Action, Nov. 11, 1967, https://‌perma.cc/‌8L2Y-RRCR.