Free Speech Rules, Free Speech Culture, and Legal Education: More 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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B. Vulnerability of Powerless Minority Groups

Some might argue that the presence of certain views or speakers in the law school (or in law school classes) is particularly harmful for powerless minority groups who feel hated or even threatened by the powerful. If the speech is allowed by the institution, then those groups will also feel unwanted and disrespected by the institution.

But of course speech suppression isn't generally targeted at the truly powerful, since if the targets were so powerful, they would be easily able to defeat the suppression. Rather, the targets of the suppression I describe here are invariably speakers that have comparatively little power in law schools—speakers whose views are sharply at odds with the views endorsed by the administration.

Conversely, the suppression takes place precisely because the groups that the suppression is meant to protect have powerful allies—either vocal student advocacy organizations, or often the administration itself. Perhaps outside the law school, the suppressed groups may indeed have political power. But in the law school, the speech restrictions fit well with the story of speech restrictions throughout history: The comparatively powerful are trying to suppress the speech of the comparatively powerless.

A law school is thus the place where it's pretty easy for the administration to make clear that it both values and respects the minority groups that are offended by the speech, and that it values open debate even on controversial topics. A school putting on a debate about immigration, for instance, can both stress to people

1. that it values all its students, wherever they may come from (and even without regard to whether they are legally present, if that's the school's policy), and
2. that anyone interested in immigration has to hear the best arguments on both side of the issue (if only to understand how one can better rebut them), especially since there is a hot national controversy on the issue.

There might still be some immigrant students who continue to be offended by there being such a debate at the law school, though I expect that many won't be, especially if it's framed this way. But the answer to them has to be that a law school can't deny educationally valuable programming to those who want to attend such events just because some people condemn the very existence of that programming at the law school.

C. Risk of Persuasiveness

Of course, if speakers can express such views at law schools, then they may persuade some law students. Indeed, since I'm talking here chiefly about mainstream perspectives, they have by definition persuaded millions of people. And even if one is confident that, in a balanced debate, the side one supports would trounce the other, there might still be some people who are persuaded by what one sees as the wrong side.

But I don't think that a law school can properly act on this theory. Law students, after all, are selected for their comparative intelligence, and their commitment to a discipline where rational argument is valued. They have been trained in college, where they presumably learned something about evaluating arguments. They are being trained further, specifically in thoughtful, critical, and self-critical analysis.

To be sure, they remain human. Being human, they may err or be deceived. But of course, the same can be said of the administrators (or objecting students) who are tempted to suppress certain views.

Those administrators—who may include faculty acting within a system of shared governance—have immense power over what is taught in the law school. They develop the curriculum. They hire the professors who teach the curriculum. They put on many events that reflect their own views.

If they refuse to allow certain views to even be aired at the law school, or otherwise take steps to discourage students from hearing the views—despite the pedagogical value, which I outlined above, of exposing students even to wrongheaded views—they are showing remarkable lack of confidence in their students, and in their own abilities to train their students in critical thinking. And they are showing overconfidence in their own ability to reliably discern which views are not just mistaken, but so mistaken that students shouldn't even be exposed to the most articulate exponents of those views.

Plus of course the students can't be insulated indefinitely from such views. Even if some students travel in ideologically homogeneous circles, and went to relatively ideologically homogeneous colleges, once they graduate they will likely have to confront positions that dissent from that orthodoxy. Many law firms remain somewhat ideologically mixed; but in any event, lawyers will often come across other lawyers, or clients, or others who hold such views and aren't afraid to express them.

If law school administrators are really concerned about that the views are wrong yet devilishly persuasive, law school offers a perfect opportunity to inoculate the students against those views: Invite credible, articulate speakers who can rebut those views.

Of course, perhaps, despite that, more people are persuaded of what the administrators see as the wrong view than the right view. But might it then be possible that the administrators are themselves the ones who are mistaken, at least to a considerable degree and in a considerable fraction of such cases?

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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
D. Risk of "Legitimizing" Certain Perspectives
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side