Friendly Advice for Law Schools Seeking to Inculcate Proper Free-Speech Values and Understandings in Light of the Stanford Episode with Judge Kyle Duncan: Part Two in a Series


In our first column in this series, we discussed the recent free-speech dustup at Stanford Law School (SLS) and Dean Jenny Martinez’s letter to the SLS community announcing (among other things) that all SLS students would be attending a mandatory half-day education session on freedom of speech and related norms of the legal profession before the end of the academic year. We then began to identify and briefly analyze, in what we called a true spirit of institutional friendship, five topics that we think warrant serious attention at that half-day program. We explored two such topics—the line between counter-speech and disruption and the doctrinal and theoretical foundations of anti-disruption rules, and the inapplicability of civil-rights-era disobedience analogies to the SLS situation—and in the space below we take up the other three.

3. When and How Should Educational Institutions Themselves Speak?

High-level university administrators (e.g., deans, provosts, chancellors, and presidents) in both private and public institutions have been asked with increasing frequency in recent years to issue statements, on behalf of the academic units or universities they lead, concerning national and world events—events that involve important topics of discourse but that do not have distinctive relevance to academic institutions. To be sure, universities and their leaders (even public ones) can, consistent with the First Amendment, speak out on behalf of their institutions (as distinguished from individual administrators expressing personal viewpoints). This is true even though those universities (especially public ones) are often barred by First Amendment principles from regulating students for the views they express.

But having power and exercising it are very different things. Dean Martinez in her letter quotes from the 1967 Kalven Report at the University of Chicago (a school that has eschewed institutional speech on almost all contentious political controversies for many decades), a famous document that philosophically outlines many of the dangers that may arise when universities weigh in on issues of the day. Of course, such philosophical considerations play out differently at different educational institutions and may incline some people and some universities to speak more often and more loudly than others. And related to these philosophical considerations are several practical ones. One of us (Amar) has written before that administrators should bear in mind a number of cautionary factors before engaging in institutional speech, especially speech on topics that don’t distinctively involve the academic unit or institution in question but instead relate to matters of more general public concern. Among such factors are: (1) making sure the speech by any administrator on behalf of a unit is consistent with the message that higher-ups in the university want to express; (2) making sure there is adequate consensus (and a process to determine such consensus) among the unit’s policymakers such that the leader can meaningfully speak on behalf of the unit at all rather than merely for some of its members; (3) speaking carefully and precisely but in a way that still conveys a meaningful message that is not so diluted or generic as to be unhelpful; (4) avoiding the creation of a slippery slope such that when one controversy or topic is addressed, groups who care about other controversies or topics can demand the institution speak on their issues in the name of equality; and (5) not speaking so frequently or repeatedly or confusingly that the institution’s speech loses some of its force or, worse yet, is simply tuned out or made fun of.

There is no clean, bright-line rule to tell administrators when they should and shouldn’t speak out. And administrators might often find it hard to resist demands by students and faculty that such administrators take official positions on controversial matters; even when explaining why they are resisting such pressure, administrators may often end up engaging in a mild version of the official pronouncement they purport to disclaim. But when administrators truly and completely stay out of things, they are not “normalizing” any or all of the particular positions being advanced by individual speakers on a topic. Instead, the institution is normalizing the basic idea that individuals should make up their own minds about controversial subjects. Silence on the part of an institution or its administrators should not be treated as approval or acquiescence.

The two of us would thus begin with a strong presumption against institutional messages on contested issues of the day. This presumption can in certain circumstances be overcome, especially when an issue has a particular effect on or implications for the university (or unit) as an institution. For example, a university taking and announcing a position on the (contested) issue of how easy it should be for foreign graduate students to obtain visas (something that distinctively affects the university itself—and not just its population—as an institution) seems very different to us than weighing in on the correctness of last year’s Second Amendment ruling by the Supreme Court ruling striking down New York’s public-carry law or the Court’s Dobbs ruling overturning Roe v. Wade. We found official statements condemning Dobbs made last year by many Chancellors and deans around the country particularly curious insofar as these statements purported to assert institutional positions on the legal correctness of a constitutional case even though the authors of the statements seemed to have no grounding in constitutional law. (None of that is to say that criticism of Dobbs is reserved to constitutional scholars like the two of us, but it is to point out how odd it is for an institution to make an official proclamation on the meaning of the Constitution when that asserted meaning contradicts the learned opinion of many or most of the institution’s subject-matter academic experts.)

Dean Martinez herself apparently starts with a presumption similar to our own; she observed in her letter that the SLS community should not expect that “the school administration [will] announce institutional positions on a wide range of current social and political issues [or] make frequent institutional statements about current news events . . . .” She too, of course, (see the word “frequent”) did not shut the door entirely. And that is wise, because there are times and places where institutional speech on matters of public concern is warranted. But for a recent example of the problems that arise when people speak before thinking these issues through, see this prior column that one of us (Amar) wrote.

4. What Are the Best Ways to Register Disagreement With Offensive Speakers and Messages?

It is often said that the best answer to bad speech is more speech—that we counter bad ideas most effectively by engaging in counter-speech that exposes the badness of the ideas we oppose and convinces anyone with an open mind that we have the smarter, more righteous position. And oftentimes that strategy is indeed the best course of action. Staging non-disruptive protests outside the venue where a wrong-headed speaker is delivering an address, holding up signs of disagreement in the room itself, convening a separate event concurrent with or shortly after the contentious address, pointing out all the unpersuasive things that were said, and (perhaps most effectively) offering smart and powerful questions and counter-arguments during the Q & A sessions that follow most talks in universities are all effective and permissible tactics to employ.

But here’s another one: simply ignore idiots and vote (and thus speak) with your feet. In other words, sometimes the best way to respond to stupid speech is simply to ignore it and starve it of the attention it so desperately seeks.

Let’s be honest. Student groups (acting within their rights) often invite people who don’t deserve an audience; student groups sometimes are unsophisticated about which speakers have anything interesting and defensible to say; and student groups are often manipulated by outside organizations that have political agendas but no real commitment to meaningful exploration and discovery of knowledge, ideas, empirical data, etc.—the very mission of universities.

As hard as it is to ignore loud know-nothings, it can be an effective device. Both of us are often asked why we didn’t attend a lunchtime session in which a student group had invited a rabble-rousing (if sometimes publicly prominent) provocateur who (if past is prologue) was unlikely to offer anything interesting or insightful. And our answer is that (even if we would enjoy the pizza!) we are ourselves making a statement by staying away. Of course we recognize that history teaches us that often evil cannot be ignored lest it might grow in size and popularity, but history also teaches us that sometimes the best way to shut a speaker down is to starve him of the attention and audience that makes him feel important.

5. What About Students Who Say They Feel Genuinely Harmed or Unsafe When Certain Kinds of Speakers are Present?

Students who oppose a speaker often assert that the speaker’s views and proposals make them feel harmed or unsafe. Indeed, students often say the mere presence on campus of a speaker whose past ideology they oppose—quite apart from anything the speaker may say in the upcoming address (perhaps on different and more banal topics)—has that effect. We would never deny that some speech can be very hurtful: speech can offend deeply, produce stress, cause embarrassment, and undermine one’s sense of worth. We think that in a university setting, in particular, these effects, properly framed, deserve some recognition and attention.

As to framing, we think it essential to keep sharp the sensible distinctions that First Amendment doctrine draws between, on the one hand, categories of speech that are harmful and can be curtailed and punished—notably defamation, legally actionable harassment of particular persons, true threats directed at specific individuals, fighting words, and incitement to violence—and speech that, on the other hand, while hurtful, remains protected under the Constitution. Virtually all complaints about the negative impact of campus speech these days tend to fall into the latter category, a category whose lines simply cannot be wished away or ignored. Indeed, even if we could ignore those lines in a university, we wouldn’t: universities in general, and law schools in particular, are places where students need (for their training as citizens and professionals) to get used to handling in a disciplined and productive way speech that makes their blood boil. How is a lawyer supposed to do her job effectively after graduation if she can’t calmly occupy the same courtroom or boardroom with someone whose speech might undermine, rather than promote, the lawyer’s sense of justice? In this respect, each law school should not merely tolerate but embrace controversial speakers (provided they are serious people and not just incendiary propagandists).

Still, just because edgy speech is protected and encouraged doesn’t mean its potentially negative effects must be disregarded. On a university campus, in particular, there exist mechanisms for promoting robust expression while also blunting negative consequences that some speech might otherwise generate. For example, a university might well permit student organizations to bring in any outside speaker they want. But that doesn’t mean the university cannot also give those organizations some general advice about how to go about choosing speakers who will best serve the organizations’ programmatic goals. In our experience, student organizations often go for a speaker who has been in the headlines, when somebody less noisy could deliver richer substance on the same topic. Universities might create special incentives—say, additional funding—for events that are sponsored by multiple student organizations and bring outside experts with competing views into conversation and debate. A speaker might still say hurtful things, but their force can be blunted by an informed response from a knowledgeable opponent sharing the stage. So, too, while we don’t much favor statements from university officials when contentious issues arise, the university itself might sponsor events that provide further opportunities for discussion and debate; those events can allow for more nuanced exploration of positions—and their consequences—than might be possible in a lunch-hour student-run session.

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