The Volokh Conspiracy

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Free Speech

"A Tale Of Two Protests: UVA v. Berkeley Law"

"What's the most effective way for law students to fight injustice?"


David Lat's latest item in his Original Jurisdiction newsletter; I thought it was very well done, as usual. The opening paragraphs:

Last week, when I went down to speak at UVA Law, I arrived in time to attend a speech about textualism by Justice Jay Mitchell of the Alabama Supreme Court. I got to know Justice Mitchell last fall, when we participated in a debate about whether the U.S. Supreme Court should adopt an ethics code—I argued in favor, he argued against—and even though we disagreed, I appreciated his thoughtful perspective. So I was eager to attend his UVA talk.

But Justice Mitchell is now a controversial figure, ever since he wrote the Alabama Supreme Court's opinion in LePage v. Center for Reproductive Medicine, P.C.—the big IVF case, in which the court held that the destruction of frozen embryos can give rise to a wrongful-death cause of action. Some UVA students decided to protest him.

As I approached the room where he would be speaking, I saw several protesters standing outside and holding signs. I wondered if they would yell at me or other people going into the talk, à la the Stanford law students who shouted "shame, shame" at attendees of Judge Kyle Duncan's March 2023 talk—and who screamed at Judge Duncan things like, "We hope your daughters get raped!"

But these were the most polite protesters I've ever seen.

They didn't heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event—"a lunch to raise funds for SisterSong, a reproductive-justice coalition led by women of color." That counter-event was accompanied by a flyer that criticized Justice Mitchell's LePage opinion, replete with footnotes and case citations.

And that's how protest should work. Upon learning that Justice Mitchell was coming to campus, protesters prepared a written critique of his opinion, circulated it within the law school, and invited people to attend a competing event. They responded to reasoned argument with reasoned argument. They didn't prevent those of us who wanted to listen to Justice Mitchell from doing so. They didn't disrupt.

Contrast the respectful response to Justice Mitchell with the disruptive protest at UC Berkeley School of Law on Tuesday night. Here's a statement issued on Wednesday by Dean Erwin Chemerinsky, whose private residence was the site of the protest: …