Free Speech Rules, Free Speech Culture, and Legal Education: Responses to Objections

I was invited to participate in a Hofstra’s Law Review symposium on free speech in law schools, which is taking place in February, and I thought I’d serialize my current draft article; there’s still a lot of time to improve it, so I’d love to hear people’s feedback. Here are some responses to possible objections to my general thesis (see the Introduction for a quick summary), although you can read the Entire PDF, if you prefer:

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To be sure, speech has costs as well as benefits. My point thus far has been that exposing law students to important mainstream views, even those that many students find offensive or downright evil, has benefits that are even more substantial than is normal for public speaking in law. general. But beyond that, the costs of doing so are less substantial than normal.

A. Discomfort from students (especially regarding opinions that are considered derogatory of their identities)

Undoubtedly, many students can be upset by a certain type of speech, especially if they see it as derogatory towards their identity. Gay and lesbian students, for example, may understandably take personally speech that (say) calls for a rejection of same-sex marriage, a return to “Don’t ask, don’t tell” in the military, or a return to Bowers vs. Hardwick. Transgender students, or their family, friends and other supporters, may take personally the speech that calls for excluding transgender athletes from women’s sports. Immigrant students may be upset by discourse critical of immigration, especially immigration from their own home countries. Many students, and especially black students, may be upset by speech that they view as unfair criticism of Black Lives Matter, or as an unfair exaggeration of the magnitude of black crime.[1]

Many Muslim students may be upset by speech they see as unfair condemnation of Islam, or even speech they see as blasphemy towards Islam, such as the reproduction of Muhammad cartoons. Many women may be upset by criticism of abortion rights, which they see as promoting the subordination or even enslavement of women.[2] Black and Hispanic students may be upset by criticism of affirmative action based on race and ethnicity, which they may see as implicitly suggesting that they (or many others like them) don’t deserve to be in law school.

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Similarly, conservative Christian students may be upset by discourse that labels their religious views as bigoted or irrational. Students whose families come from Israel, or even many Jewish students in general, may be upset by speech that they see as unfairly targeting Israel for criticism that does not apply to other countries.[3] Children, siblings, or spouses of police officers may be upset by speech they feel unfairly suggests that all police officers are racist or brutal (and especially by speech that advocates correcting violence against police officers). ).[4]

People who see themselves as abortion survivors.[5]—perhaps because they know that their mothers had almost decided to abort, or because they know that their mothers terminated pregnancies that would otherwise have produced their brothers or sisters—they may be upset to hear abortion rights praised. Cuban-Americans can be upset with people who praise (or, worse yet, represent) the regime that their parents had to flee from, or that killed their relatives.[6]

But the job of lawyers is to calmly and effectively confront even unpleasant and offensive arguments. That can be especially true for lawyers who specialize in the fields we discussed above (such as constitutional law, civil rights law, and the like). However, it is also true for lawyers in other fields.

Employment lawyers may have to deal with cases where an employee was fired for allegedly racist or anti-gay speech, or cases that challenge affirmative action policies. Business lawyers may have to guide their clients through disputes over boycotts of Israel or Cuba. Criminal lawyers may have to argue cases where a defendant, witness, or victim has made offensive speech. In fact, attorneys who attend a trial court motion hearing or appellate argument will often end up seeing unrelated cases on other issues before their case is called (and may need to pay attention to those). cases to get an idea of ​​the judges’ approaches).

Similarly, the job of lawyers is to deal calmly and effectively with people who have made offensive and unpleasant arguments in the past. Many boycotts and speaker interruptions occur not because the speaker is saying things that some people find offensive, but because the speaker has He said such things before, for example, in previous trials.[7] However, lawyers will have to routinely interact civilly with opposing counsel who have said such things in the past. In fact, they may have to work extensively with opposing counsel to negotiate solutions that can help both parties. To do all of that, they must have habits and attitudes that allow them to deal well even with people whose ethical and legal opinions they harshly condemn.

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Beyond this, the objections I’ve heard most often have been that the law school allows or hosts optional extracurricular events that the law student doesn’t even have to attend. Law students should be able to accept that mere presence in the building with some equanimity. If they are upset about it, the school should try to teach them to be less upset, perhaps by laying out the reasons why such events are important to a law school to organize.[8]

And while I recognize that some law students will continue to be upset by the mere presence of such speech in law school, law schools should try to work against this backlash, rather than validate it and thus reinforce or even expand it.[9] Giving in to student objections by banning events involving certain ideas or certain speakers, or even denouncing those events and speakers in ways that aim to shut down the events, would send the wrong message to students. Such a message would be of bad use to them in the practice of law, and therefore would also be of bad use to their future clients.

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Still to come, in future posts (or you can see it now in the PDF):

third Responses to some possible objections
B. Vulnerability of powerless minority groups
C. Risk of persuasion
D. Risk of “legitimizing” certain perspectives
E. Missing the opportunity to cool down the political and ideological participation and organization of the other side

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[1] See for example, Oakes Farms Food & Distribution Servs., LLC v. Sch. Dist. of Lee Cnty., Fla., 541 F. Supp. 3d 1334, 1341 (MD Fla. 2021) (discussing termination of food service contract apparently based in part on opposition to contractor’s criticism of Black Lives Matter protests); Amara Omeokwe, Economist urged to place post at top of newspaper after criticizing Black Lives MatterWall St.J., June 11, 2020.

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[2] Cf. Dezanii Lewis and Bethany Ivan, When free speech becomes hate speechNiner Times, Oct. 29, 2022, (characterizing “a campus exhibit displaying graphic images of fetal embryos” as “hate speech” in part because it “equates[d] a person’s right to choose with genocide”); Jane Kirby, Freedom of expression (hate)briarpatch, September 9, 2010, (“many pro-choice advocates have suggested that CCBR activities [Canadian Centre for Bio-Ethical Reform] legally constitute hate speech by inciting hatred towards those women who have or support the right to abortion”).

[3] Watch Anti-Israel Hate Week ’22 Fueled by Recent Anti-Israel EventsLouis D. Brandeis Center, undated,

[4] Keri Blakinger, Organization of the National Police demands protection against hate crimes after the latest murder of a police officerNew York Daily News, September 3, 2015, 12:36 PM. .

[5] See for exampleAudrey, I was a survivor of abortion. I can no longer remain silentPriests for Life, undated,

[6] See for exampleMichael Perez, Cubans enraged with Che as a t-shirt iconSeattle Times, April 11, 2005.

[7] See for exampleincidents cited supra notes 11 and 13.

[8] Cf. Kennedy and Volokh, supra note 5, at 52 (arguing that “feelings of pain are not given immutable, untouched, and untouchable by the ways in which their expression is received. Such feelings are, at least in part, affected by the responses of observers”).

[9] Cf. identification. at 42–43 (noting the danger that giving in to student objections that some material is offensive—there, material that quotes, unredacted, slander reported in court cases, and court records—will counterproductively reinforce attitudes that tend to to make students less effective lawyers).