The Volokh Conspiracy
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Free Speech Rules, Free Speech Culture, and Legal Education: Responses to Objections
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 responses to possible objections to my general thesis (see the Introduction for a quick summary), though you can read the whole PDF, if you prefer:
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To be sure, speech has costs as well as benefits. My point so far has been that exposing law students to important mainstream views, even ones that many students find to be offensive or downright evil, has benefits that are even more substantial than normal for speech to the public at large. But beyond that, the costs of doing so are less substantial than normal.
A. Student Upset (Especially as to Views That Are Seen as Derogatory of Their Identities)
Many students may doubtless be upset by certain kind of speech, especially if they view it as derogatory towards their identities. Gay and lesbian students, for instance, may understandably take personally speech that (say) proposes a rejection of same-sex marriage, a return to "Don't Ask, Don't Tell" in the military, or a return to Bowers v. Hardwick. Transgender students, or their family, friends, and other supporters may take personally speech that urges excluding transgender athletes from women's sports. Immigrant students may be upset by speech that criticizes immigration, especially immigration from their own countries of origin. Many students, and especially black students, may be upset at speech that they see as unfairly criticizing Black Lives Matter, or that they see as unfairly exaggerating the magnitude of black-on-black crime.[1]
Many Muslim students may be upset at speech that they see as unfairly condemning Islam, or even at speech that they see as blasphemous towards Islam, such as reproduction of the Mohammed cartoons. Many women may be upset at criticism of abortion rights, which they see as promoting the subordination or even enslavement of women.[2] Black and Hispanic students may be upset at criticism of race- and ethnicity-based affirmative action, which they may see as an implied suggestion that they (or many others like them) don't deserve to be at the law school.
Likewise, conservative Christian students may be upset at speech that calls their religious views bigoted or irrational. Students whose families come from Israel, or even many Jewish students more broadly, may be upset at speech that they view as unfairly targeting Israel for criticisms that aren't levied at other countries.[3] Children, siblings, or spouses of police officers may be upset at speech that they see as unfairly suggesting that all police officers are racist or brutal (and especially at speech that defends the propriety of violence against police officers).[4]
People who see themselves as survivors of abortion[5]—perhaps because they know their mothers had almost decided on abortion, or because they know that their mothers had terminated pregnancies that would otherwise have produced their brothers or sisters—may be upset at hearing abortion rights praised. Cuban-Americans may be upset at people who praise (or, worse still, represent) the regime that their parents had to flee, or that had killed their family members.[6]
But lawyers' job is to calmly and effectively confront even unpleasant, offensive arguments. That may be especially true for lawyers that specialize in the fields we discuss above (such as constitutional law, civil rights law, and the like). Yet it is also true for lawyers in other fields.
Employment lawyers may have to deal with cases in which an employee was fired for allegedly racist or anti-gay speech, or cases challenging affirmative action policies. Business lawyers may have to navigate their clients through disputes about boycotts of Israel or Cuba. Criminal lawyers may have to argue cases in which a defendant, witness, or victim has engaged in offensive speech. Indeed, lawyers attending a trial court motion hearing or an appellate argument will often end up seeing unrelated cases on other topics before their case is called (and may need to pay attention to those cases to get a sense of the judges' approaches).
Likewise, lawyers' job is to calmly and effectively deal with people who have made unpleasant, offensive arguments in the past. Many boycotts and disruptions of speakers happen not because the speaker is saying things that some people view as offensive, but because the speaker has said such things before, for instance in past lawsuits.[7] Yet lawyers will have to routinely interact civilly with opposing counsel who have said such things in the past. Indeed, they may have to intensively work with opposing counsel to negotiate solutions that can help both sides. To do all that, they have to have the habits and attitudes that allow them to deal well even with people whose ethical and legal views they sharply condemn.
Beyond this, the objections I've most often heard have been to a law school's allowing or organizing optional, extracurricular events that the law student doesn't even have to attend. Law students should be able to take such mere presence in the building with some equanimity. If they are upset by it, the school should try to teach them to be less upset, perhaps by laying out the reasons why such events are important for a law school to host.[8]
And while I recognize that some law students will continue to be upset by the mere presence of such speech at the law school, law schools must try to work against this reaction, rather than validating it and thus reinforcing or even expanding it.[9] Giving in to students' objections by forbidding events involving certain ideas or certain speakers—or even by denouncing those events and speakers in ways that aim to shut down the events—would thus send the wrong message to students. That message would serve them ill in the practice of law, and would thus ill-serve their future clients as well.
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Still to come, in future posts (or you can see it now in the PDF):
III. Responses to Some Possible Objections
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] See, e.g., Oakes Farms Food & Distribution Servs., LLC v. Sch. Dist. of Lee Cnty., Fla., 541 F. Supp. 3d 1334, 1341 (M.D. Fla. 2021) (discussing termination of food service contract that was apparently based in part at opposition to the contractor's criticism of Black Lives Matter protests); Amara Omeokwe, Economist Urged to Drop Post Atop Journal After Criticizing Black Lives Matter, Wall St. J., June 11, 2020.
[2] Cf. Dezanii Lewis & Bethany Ivan, When Freedom of Speech Becomes Hate Speech, Niner Times, Oct. 29, 2022, https://perma.cc/6V8Y-ZQZJ (characterizing "a display on campus that depicted graphic images of fetal embryos" as "hate speech" in part because it "equate[d] a person's right to choose with genocide"); Jane Kirby, Freedom of (Hate) Speech, briarpatch, Sept. 9, 2010, https://perma.cc/H5N4-6Z89 ("many pro-choice advocates have suggested that the activities of the CCBR [Canadian Centre for Bio-Ethical Reform] legally constitute hate speech by inciting hatred towards those women who have or support the right to have abortions").
[3] See Anti-Israel Hate Week '22 Turbocharged by Recent Anti-Israel Events, Louis D. Brandeis Center, no date, https://perma.cc/C78X-ERZE.
[4] Keri Blakinger, National Police Organization Demands Hate Crimes Protection After Latest Cop Killing, N.Y. Daily News, Sept. 3, 2015, 12:36 pm ("Chuck Canterbury, president of the National Fraternal Order of Police" 'called out elected officials for being silent in the fact of anti-police 'hate speech'").
[5] See, e.g., Audrey, I Was a Survivor of Abortion. I Can Remain Silent No More, Priests for Life, no date, https://perma.cc/6JMV-9BXZ.
[6] See, e.g., Miguel Perez, Cubans Enraged at Che as T-Shirt Icon, Seattle Times, Apr. 11, 2005.
[7] See, e.g., incidents cited supra notes 11 and 13.
[8] Cf. Kennedy & Volokh, supra note 5, at 52 (arguing that "feelings of hurt are not unchangeable givens, untouched and untouchable by the ways in which their expression is received. Such feelings are, at least in part, affected by the responses of observers.").
[9] Cf. id. at 42–43 (noting the danger that giving in to students' objections that some material is offensive—there, material that quotes, without expurgation, slurs reported in court cases and court records—will counterproductively reinforce attitudes that tend to make students less effective lawyers).