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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D. Risk of "Legitimizing" Certain Perspectives
Some have argued that allowing certain speech at a law school student-organized event may wrongly "legitimize" that perspective. But, as I argued above, law schools are populated with intelligent people who understand that a student-organized event bears the imprimatur of the student group, not the law school.
Nor will allowing such speech help legitimize the event for the broader public. That some speaker gave a talk at, say, UCLA School of Law (or even Harvard or Yale) hardly gives him credibility. Law school events just aren't that big a deal.
Now if the law school invites a speaker to an event that it itself organizes, that does involve saying something about the speaker. But the law school has a great deal of control about exactly what it says.
As I suggested in Part II.D.3, the point of such events should be to invite the most thoughtful, reasoned exponents of prominent and important perspectives. Law schools can easily organize the event to make clear that they aren't saying that either side is correct, but only saying that both sides are important to listen to so one can arrive at one's own conclusion about a notoriously contentious debate.
Indeed, even if a law school does want to say that one side is correct—again, something I'd recommend against, for reasons given in the University of Chicago's Kalven Report[1]—it can do so, while still stressing that it's important for people to hear both sides:
Come hear John Peters and Jane Williams debate immigration policy! Most of us in the faculty and the administration do not share Jane Williams' views, but both of the speakers are among the most thoughtful and engaging defenders of their positions, and it's important for law students who want to understand the debate to come and hear both sides.
It shouldn't be hard for law students to grasp that the school isn't endorsing Williams' position, but is endorsing the pedagogical value of the debate. And to the extent that this "legitimizes" Williams' position, in the sense of highlighting that this is a view that much of the public shares (as, by hypothesis, it does) and that Williams is a leading proponent of the view (as, by hypothesis, she is), that is precisely what an honest educational institution should do.
E. Losing the Opportunity to Chill Political and Ideological Participation and Organization by the Other Side
To be sure, some instances of speech suppression do more than just stop one particular speaker from reaching one particular batch of listeners. Rather, they can deter many more people from expressing the same views.
Say a group shouts down a speaker who expresses some view that group dislikes: that transgender athletes shouldn't play women's sports, that America's war against some country is unjust, or what have you. And say that the law school does nothing to stop that, or to punish the disrupters.
Seeing that is likely to deter many students from expressing similar views. Even if they aren't afraid of being shouted down, they might be afraid of, for instance, being blackballed for jobs, or of other sorts of professional retaliation. If they see that a view is being treated as so bad that it can't even be expressed at a law school, they might naturally worry that it will be treated as disqualifying for various positions that they might seek. Even faculty members might worry that expressing such views will jeopardize their prospects of tenure, or of getting a job at a more prestigious law school.
Likewise, students might conclude that, for instance, it's too dangerous to contribute money to a ballot measure that expresses such a view, or to campaign for a candidate who expresses that view, both in law school and after they graduate; again, likewise with faculty. Less public speech in favor of a cause, and less contributed to the cause, means less chance that the cause would succeed. Creating an institutional culture where some policy proposals are out of bounds—as evidenced by the administration's shutting down events at which some proposals are advocated, or tolerating students' shutting them down—may thus tend to make those proposals less politically successful.
Some people might welcome that, and indeed be motivated precisely by such a desire. After all, they may think those proposals, if implemented, would be atrocious violations of the rights of the downtrodden, or would jeopardize the lives of our soldiers overseas, or would destroy the environment, or would prolong the ongoing genocide of the unborn. Even if advocacy of the proposals can't be outlawed by the government, why not try to suppress it through private action, and in particular by making people fearful of being boycotted or blacklisted if they support the proposals?
This is not, of course, a ridiculous position. Pragmatically speaking, it may work in some situations. And morally, one can certainly argue that, if some proposals are sufficiently gravely wrong, one should do all one can (perhaps short of violence) to prevent them from being enacted.[2]
But I don't think this ought to be the view of institutions of higher education, and especially of law schools. Just as it's often said that a university should teach students how to think, not what to think,[3] so a law school should teach students how to argue, not what to argue. And a law school should certainly not condone suppression of certain arguments as a tool for the political defeat of those arguments.
Conclusion
The arguments in favor of protecting free speech, of suppressing attempts to disrupt speech, and of deliberately promoting debate, even on the most controversial of issues, are strong in many contexts. They are particularly strong in universities generally, whatever subjects they teach, and of course in public debate more broadly.
But they are especially strong in law schools. Law schools need to teach students to hear out contrary views. Law schools need to teach students to learn from contrary views, whether to more effectively combat them or perhaps even to adopt any insights that even mistaken views might hold. Law schools need to teach students to work effectively with people who have contrary views.
Suppressing speech, tolerating student disruption of speech, and even failing to expose students to both sides of important controversies thus doesn't just interfere with free speech and academic freedom: It undermines all law students' education, including the education of students who most disagree with the speech that some are trying to suppress.
[1] See supra note 15.
[2] "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition." Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting).
[3] See, e.g., Richard C. Levin, The Work of the University 16, 28 (2008).
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