I've been following with great interest the public discussion of Fifth Circuit Judge James Ho's speech on "Restoring America by Resisting Cancel Culture," and had a chance to read a draft of it. My interest both from the importance of the underlying issue and from my having known Judge Ho for over 25 years, indeed since before he went to law school (he was working for a California State Senator at the time).
I've also much appreciated Judge Ho's perspective on free speech issues, for instance in Oliver v. Arnold (5th Cir. 2021), where he wrote in support of the First Amendment rights of a high school student who objected to a requirement that she "transcribe the Pledge of Allegiance and listen to the Bruce Springsteen song 'Born in the U.S.A,'" and in Villareal v. Laredo (5th Cir. 2022), where he wrote in support of the First Amendment rights of journalists to ask questions of the police (even about confidential matters). I think Judge Ho is seriously concerned about free speech for everyone, left or right, and objects to Yale Law School's practices because of this concern. Even if I hadn't known him or his work, I would still want to focus on the merits of his proposal rather on any supposed ulterior motivation. But given my respect for him, I especially want to focus on the proposal's substance.
And while I found myself agreeing with much of Judge Ho's substantive diagnosis of the problem, I differ on the solution, and in particular on the suggestion that drew the most attention—that judges boycott law clerks who go to Yale Law School until that school does more to protect free speech, and to prevent disruptions of unorthodox speakers. (I appreciate that the proposal would only start with students who go to law school starting Fall 2023, so they are on notice of the possible boycott, but for reasons I note below, I don't think this justifies the proposal.)
