FREE SPEECH IN AMERICAN LAW SCHOOLS
HON . DAN TRAYNOR ABA Delegate
Progressive viewpoints have always found a home in America ’ s legal academy . Even in law schools located in conservative states , some law professors seem more concerned about using the proper pronoun than enlightening an aspiring lawyer on the nuances of subject matter jurisdiction .
In some of this country ’ s landmark legal institutions , this tilt toward progressivism has morphed into actual hostility to any viewpoint that does not accept the liberal view on a host of social or traditional family issues .
At the UC Hastings College of Law in San Francisco , Calif ., the local Federalist Society chapter spent months planning an event concerning a potential vacancy on the United States Supreme Court . The event was set to feature legal academics from different philosophical viewpoints : libertarian / conservative legal scholar Ilya Shapiro from Georgetown and liberal / progressive legal scholar Rory Little from UC Hastings .
When the event was held , Shapiro was shouted down by angry students who accused him of sexism and racism . Whenever he attempted to speak student protestors banged tables and shouted profanity and personal insults . A video of the event was featured proudly on the school ’ s Black Law Students Association social media account .
The UC Hastings provost and law school dean responded with an email to the student body of “ future lawyers , judges , legislators , and changemakers ” reiterating the value of diversity , equity , and inclusion . The administrators wrote , “ We may not support Mr . Shapiro ’ s previously expressed views – some of which we personally find deeply offensive – but we support his right to speak on our campus . As Voltaire famously stated , ‘ I do not agree with what you have to say , but I ’ ll defend to the death your right to say it .’”
A few weeks later , more than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties . The event featured speakers from the progressive American Humanist Association and the conservative Alliance Defending Freedom . Significantly , the stated purpose of the event was to illustrate that a liberal atheist and a conservative Christian could find common ground on free speech issues .
The Yale “ free speech ” event devolved into chaos with speakers fearing for their safety and attendees feeling intimidated . The disruptive mob required the police to be called . In response , the law school ’ s administration took no action to reprimand the disruptive students .
The second controversy prompted D . C . Circuit Judge Laurence Silberman to express his concern in a March 17 email to his fellow Article III judges :
“ The latest events at Yale Law School , in which students attempted to shout down speakers participating in a panel discussion on free speech , prompted me to suggest that students who are identified as those willing to disrupt any such panel discussion should be noted . All federal judges – and all federal judges are presumably committed to free speech – should carefully consider whether any student so identified should be disqualified from potential clerkships .”
Dozens of federal judges responded to Judge Silberman ’ s email with some expressing support , but most simply begged everyone else to avoid hitting “ Reply All .” The threat of blacklisting law students from clerkships drew both praise and criticism from legal journalists and social media commentators . In the end , it is doubtful student disruptions will have much impact on the competitive nature of law clerk hiring or harm the job prospects of graduates from the country ’ s top law schools .
Perhaps the greatest concern is that these institutions are not preparing students to work in an adversarial process , where opposing views and sometimes controversial viewpoints are the grist for the case . When disruptive law students become lawyers , do they expect to shout down or mock a disagreeable viewpoint expressed by opposing counsel or a judge ?
Lawyers are engaged to be the sensible advocate for a client , not some disorderly agitator . Indeed , the disorderly agitator may be the one who needs a dispassionate advocate . Zealous advocacy cannot occur where the person on the other side ( or in the middle ) has to call the police to keep the peace .
More than anyone in society , lawyers are asked to disagree without being disagreeable . Such a basic tenant of professionalism must permeate the environment in legal education .
24 THE GAVEL