Is Free Speech In American Law Schools A Lost Cause?

Recent controversies at UC Hastings and Yale Law—Yale, shocking, I know—don't provide much reason for hope.

The Yale Law School, at 127 Wall Street in New Haven, Connecticut (photo by David Lat).

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On March 1, at the UC Hastings College of the Law in San Francisco, the law school’s chapter of the Federalist Society attempted to hold an event titled “The Battle Over Justice Breyer’s Seat.” Planned months in advance, it was going to be a debate about the future of the Supreme Court between the libertarian/conservative legal scholar Ilya Shapiro, executive director of the Center for the Constitution at Georgetown Law (currently on leave), and the liberal/progressive legal scholar Rory Little, the Joseph W. Cotchett Professor of Law at UC Hastings.

After the event was scheduled but before it took place, Shapiro issued his controversial and poorly worded “lesser black woman” tweets about the SCOTUS nomination process, which made him a reviled figure on the left. So when he flew across the country and appeared at the UC Hastings event, he was shouted down by angry students who accused him of sexism and racism. Whenever Shapiro tried to speak, student protesters drowned him out with shouting, table banging, profanity, and personal insults, calling him a “f**king coward” and saying things like, “When did you start balding? Are you sad that you’re balding? I would be.” (You don’t have to take my word for it; see video of the event that the UC Hastings Black Law Students Association posted to Instagram, expressing pride in what transpired.)

I was deeply dismayed by what happened at Hastings. So was UC Hastings Chancellor and Dean David Faigman, who sent out an eloquent email strongly emphasizing the law school’s commitment to both free speech and diversity, equity, and inclusion. As Dean Faigman 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.”

I hoped that the Shapiro shout-down was an aberration, an isolated event that would not be repeated at other law schools. Unfortunately, less than two weeks later, something similar almost happened at… yes, you guessed it, Yale Law School. Here’s a report from Aaron Sibarium of the Washington Free Beacon:

More than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties, intimidating attendees and causing so much chaos that police were eventually called to escort panelists out of the building.

The March 10 panel, which was hosted by the Yale Federalist Society, featured Monica Miller of the progressive American Humanist Association (AHA) and Kristen Waggoner of the Alliance Defending Freedom (ADF), a conservative nonprofit that promotes religious liberty. Both groups had taken the same side in a 2021 Supreme Court case involving legal remedies for First Amendment violations. The purpose of the panel, a member of the Federalist Society said, was to illustrate that a liberal atheist and a conservative Christian could find common ground on free speech issues.

For additional coverage, see the Eda Aker and Philip Mousavizadeh’s article in the Yale Daily News and Robby Soave’s post over at Reason.

If you read the Free Beacon’s coverage, you get the sense of an out-of-control mob; if you read the YDN’s coverage, you get the sense of quiet, non-disruptive protesters, threatened by the presence of police. Based on what I’ve heard from folks who were there, the truth lies somewhere in between. The protesters were disruptive at the start of the event, both inside the classroom and after they repaired to the hallway. But unlike the protesters at Hastings, they did calm down (eventually), and they did not succeed in “canceling” the Yale event, which moved forward to completion.

Credit for this should go to Professor Kate Stith, moderator of the Yale FedSoc event, who had the unenviable task of dealing with this fraught situation. As you can see in video footage (via the Free Beacon), after the protesters started getting noisy inside the classroom, claiming that this was their form of “free speech,” she reminded them of the school’s actual free-speech policies (and told them that they needed to “grow up,” for which she was jeered). She informed the protesters that they could either (1) stay in the classroom, remain quiet during the speakers’ presentations, and ask questions during the Q&A, or (2) they could leave the classroom and gather in the hallway, as long as they did not disrupt the event.

After Professor Stith issued this warning, most of the protesters left the room and went out into the hallway. They continued to be disruptive in the hallway for perhaps five to ten minutes—cheering, stomping, singing happy birthday (apparently it was someone’s birthday)—but YLS administrators on the scene (eventually) got them to calm down. Some of the protesters later went back into the classroom, where they asked pointed questions of Kristen Waggoner during Q&A (as was their right, and entirely appropriate).

[UPDATE (10:25 p.m.): Based on what I have heard from additional sources, as well as video and audio I have reviewed, I now believe that the disruption of the event was longer and more intense than described in the preceding paragraph. The noisy protest continued, at varying levels of intensity, throughout most if not all of the proceedings. This made it difficult for audience members to hear or focus upon the speakers at times, and it even disrupted classes and a faculty meeting taking place in other parts of the building. This new information doesn’t really change my analysis of the free-speech issues discussed below—except to perhaps reinforce my conclusions—but I note it for the record. It also explains why, a few paragraphs down, I have replaced “disruption” with “getting completely canceled.” The event was significantly disrupted, even if it wasn’t totally canceled à la Hastings and managed to limp to a conclusion.]

[UPDATE (3/18/2022, 11:28 a.m.): For more details on just how disruptive the protest was—not just to the FedSoc event, but everything going on at YLS at the time—please see my Twitter thread.]

What explains the presence of Yale University police officers at the event? Both the Washington Free Beacon and Yale Daily News stories are unclear on this point, but I received some clarity from YLS’s spokesperson, Debra Kroszner, who provided me with this statement:

We regularly work with student groups for various events and speakers. When visitors to the Yale campus bring their own security, as in this case, University policy requires the Law School to inform Yale Police. We then work with the police to determine the appropriate level of support for the particular visitor and/or event.

The Law School follows the University’s free speech policy and procedures, which includes a three strikes rule. As soon as the moderator read the University’s policy for the first time, the students exited the event, and it went forward. Members of the Administration are nonetheless in serious conversation with students about our policies, expectations, and norms.

So it’s not quite accurate to claim, as the protesters did in an open letter to the YLS administration after the event, that “armed police officers were called into the Sterling Law Building in response to our exercise of peaceful protest.” Instead, they were there pursuant to Yale University policies and procedures (as Kroszner told the YDN), since one speaker—Kristen Waggoner, I understand—had her own private security.

I’m glad that YLS faculty and administrators, especially Professor Stith, were able to protect this event from disruption getting completely canceled. But I do wish that Dean Heather Gerken had sent out a message right after the event along the lines of Dean Faigman’s missive at Hastings, making clear that the protesters’ behavior—attempting to disrupt the event from inside the classroom, then repairing to the hallway and continuing to make excessive noise to drown out the event—was unacceptable.

My understanding is that after YLS’s spring break, which is about to start, administrators will meet with students to explain the law school’s free-speech and protest protocols—and that the administration prefers to address the situation in this way, rather than through a school-wide email. Since in-person events are only starting to return to YLS, after almost two years, many students are unfamiliar with the proper protocols for them.

But here’s my big takeaway from the latest YLS controversy: the free-speech problem in our law schools isn’t just about administrators, and they can’t solve the problem by themselves. The problem goes much deeper and is rooted in the mindset of students—and by this I don’t mean any particular class of students, since they all eventually graduate, but law students more generally in the year 2022. As Aaron Sibarium writes in the Free Beacon:

The chaos at the panel shows that it's not just campus administrators who threaten free expression. At the nation's top law school, it is also the students themselves.

"If trap house illustrates the students-to-administration problem," a senior member of the Federalist Society said, "this illustrates the students-to-students problem."

In the two days following the panel, more than 60 percent of the law school's student body signed an open letter supporting the "peaceful student protesters," who they claimed had been imperiled by the presence of police.

The two panelists at the YLS event, Monica Miller and Kristen Waggoner, both expressed disappointment over how the Yale law students comported themselves. As Miller of the AHA—no fan of the ADF, which she noted during the panel has been designated a “hate group” by the Southern Poverty Law Center—told the Free Beacon, “As lawyers, we have to put aside our differences and talk to opposing counsel. If you can't talk to your opponents, you can’t be an effective advocate.”

Exactly—and I’m not sure how much I can add. As a gay man who is in a same-sex marriage and raising a son with my husband, I strongly disagree with ADF’s views on same-sex marriage and parenting. But I strongly defend the right of its leaders to speak and to participate in public events, and I think the treatment that Kristen Waggoner received at YLS was disrespectful and wrong.

I guess I’d just like to address the argument offered by protesters that their disrupting events is a form of “free speech” as well. I agree with what Professor Eugene Volokh, one of the nation’s leading experts on the First Amendment, wrote at Reason:

I've heard some people argue that such heckling is itself constitutionally protected speech, but I don't think that's right (at least unless a school deliberately opens up such presentations as free shouting zones for everyone). Generally speaking, schools may and do set up viewpoint-neutral restrictions on speech at such events, generally that the speakers speak for X minutes and then the audience gets to ask questions for Y minutes, with the speakers responding. And of course student groups at law schools are generally free to set up their own events, where their views can be presented without being shouted down (or even materially interrupted by chanting and the like).

Of course, if shouting down is considered acceptable speech, I expect that many people may want to take advantage of it: some anti-abortion activists who oppose pro-abortion-rights speakers, some anti-critical-race-theory activists who oppose critical race theorists, some gun rights activists who oppose advocates of what they see as oppressive and unconstitutional violations of people's gun rights, and more. I'd rather that none of them get to shout down rival speakers—but if critics of Shapiro were entitled to "silenc[e]" him at UC Hastings, then First Amendment viewpoint-neutrality rules would require that critics of other speakers would be entitled to silence them, too.

Very true. If I have to choose between an environment in which everyone gets to speak (and be heard) versus an environment in which everyone can shout down everyone else, I’m going with the former. The entire point of free speech is undermined if we can’t listen to one another, even if technically we all get to “speak.”

Another expert on the First Amendment, Professor Howard Wasserman, is more sympathetic to the students than Professor Volokh. Professor Wasserman believes there’s a time and place for heckling and shouting others down—e.g., on a public sidewalk—and he shares the concern of another free-speech guru, lawyer/commentator Ken White aka Popehat, that norms of “civility” and “decorum” can be deployed in a way that’s one-sided or unfair.

But even Professor Wasserman believes that students are in the wrong when they try to shout down speakers in a classroom at a duly organized law-school event, as he explained over at PrawfsBlawg (the explanatory link to “Brandeisian counter-speech” has been supplied by me):

The students [protesting Ilya Shapiro at Hastings] did not engage in a heckler's veto. They engaged in heckling, a form of Brandeisian counter-speech. Were Shapiro speaking on an open campus sidewalk and the protesting students shouted back from an adjoining sidewalk, this should be the result. Same if the students remained outside the room or outside the building producing similar noise. There is nothing improper in heckling or attempting to "shout down" a speaker.

The protest crossed the line and lost its protection via the neutral rules of the classroom forum. Those rules presumably granted Shapiro (and the student group that invited him and reserved the room) a greater expressive right than the dissenting audience members; those neutral rules made Shapiro and Fed Soc preferred first speakers. The source of the heckler’s veto is not the protesting students or the attempt to shout Shapiro down and prevent him from being heard. The source lies in the administration failing to remove the disruptive students or otherwise control the situation; governmental inaction or failure to protect deprived him of the ability to speak. The government could have shut the protesting students up or removed from the room; it can sanction them after the fact. The removed students cannot claim their speech rights were violated; by heckling in that time and place, they engaged in civil disobedience, an unlawful act for which they must be willing to pay a price.

So here’s what I’m left wondering: can free speech at Hastings Law and Yale Law, and at U.S. law schools more generally, be saved? Or is the situation simply too far gone?

While in law school, members of the left might welcome an environment that takes a majoritarian approach to free speech, where the majority—i.e., liberals and progressives, at least at most U.S. law schools—gets to shout down the minority. That’s one possible approach to speech issues—not the one endorsed by First Amendment experts like Professors Volokh and Wasserman, but an approach.

Beyond the ivory tower, however, in a nation that’s much more ideologically balanced—and in some parts of the country, dominated by conservatives—would members of the left want a majoritarian approach to free speech? Would they want an environment where a majority can ban the teaching of critical race theory, the reading of Toni Morrison novels, or a particular approach to sex education? My guess is no.

I certainly wouldn’t want a majoritarian approach to free speech. Stepping behind the veil of ignorance, and not knowing whether my views will be the majority or minority views, I would much prefer an environment where everyone gets to speak—and to be heard—as opposed to a “survival of the loudest” environment where everyone gets to shout down everyone else, and the most numerous and boisterous voices prevail.

One final thought: I can’t believe I’m having to write a defense of a free-speech regime in which people listen respectfully to the other side, even when they find the other side’s views abhorrent, as opposed to a free-speech regime where “freedom” belongs to whoever can yell the loudest. You would have expected—and hoped—that law students, as future lawyers, would understand the value of the former and the problems with the latter.

When these law students become lawyers, and many of them have to go to court or a negotiating table, they will have to listen to the other side—whether they like it or not, and no matter how “offensive,” “triggering,” or “violent” they find the views of the other side to be. Shouting down opposing counsel, then claiming that you’re just engaging in your own form of “free speech” or “zealous advocacy,” will not fly in the world beyond Yale Law School.

I’ll close with the words of Kristen Waggoner of the Alliance Defending Freedom. She and I disagree strongly on many, many things, but I agree with what she said after her visit to YLS: “Yale Law students are our future attorneys, judges, legislators, and corporate executives. We must change course and restore a culture of free speech and civil discourse at Yale and other law schools, or the future of the legal profession in America is in dire straits.”

UPDATE (12:12 p.m.): Federal judges are taking note of what’s happening at Yale Law School and similar institutions (and not because many of them are readers of Original Jurisdiction). Here’s what Judge Laurence Silberman (D.C. Cir.) just wrote by email to all of 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, prompt 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.

UPDATE (5:03 p.m.): How did his fellow judges respond to Judge Silberman’s email? Here’s a Twitter thread from Mark Joseph Stern collecting some of the responses (including the expected “please do not hit ‘reply all’”).

UPDATE (3/21/2022, 3:45 p.m.): What do I think needs to happen at YLS? Please read my new post, An Open Letter To Yale Law Dean Heather Gerken.

UPDATE (3/28/2022, 1:25 p.m.): In case you missed it, check out Free Speech at Yale Law School: One Progressive’s Perspective. Even some progressives at YLS are troubled by how the March 10 protesters chose to voice their objections.

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