At first, the series of statements and emails to the Georgetown Law School community (and made public) after Justice Scalia’s death seemed to me an indication that free speech values are atrophying at our top law schools. I have since changed my mind. These emails, and their use of divisive, emotionally charged rhetoric, ultimately defeat themselves. In their wake, these emails can teach us important lessons about striking the right balance between sensitivity to others and airing of controversial views. It is critical that law school educators and students learn the right lessons.
Private universities, unlike state actors, can experiment with different ways of maximizing speech and optimizing learning, but certain fundamentals should remain. I am hopeful that these emails can teach us that no group or individual represents everyone’s views, that logic and principle should decide the worthiness of a cause, and that no one earning a legal education should be shielded from dissenting opinions.
The emails and statements regarding Justice Scalia’s legacy, while containing important points, lack some of the hallmarks of productive discourse and effective legal training. Aspects of the emails and statements prioritized emotion over logic, overclaimed about the experiences and feelings of others, and ignored the propriety of the forum for conveying certain views.
First, Dean Treanor issued a statement noting that “Georgetown Law mourns the loss” of the brilliant, highly influential Justice Scalia. Days later, Professor Peller responded with an email to the entire law school, hypothesizing that “many other faculty, students, and staff, particularly people of color, women, and sexual minorities” would disagree with the praise of Justice Scalia’s jurisprudential methods and contributions. Professors Barnett and Rosenkranz then voiced their views that Professor Peller’s remarks reflected a lack of intellectual diversity at Georgetown and showed contempt for students in mourning who were “traumatized, hurt, shaken, and angry.” And in response to this response, Georgetown’s Black Law Students Association replied that many black students felt “shaken and angry” about Justice Scalia’s comments during oral argument in Fisher. BLSA’s statement also criticized Barnett and Rosenkranz’s email for co-opting the frame of minority students who ask their classmates and instructors to show more awareness of the concerns and perspectives of students with minority backgrounds.
These emails are a great lens for thinking about how to promote free speech values that benefit the whole law school community. Free speech doctrine is not involved because Georgetown Law is a private institution, but free speech values are still significant at academic institutions. First Amendment doctrine prohibits the government from censoring speech. Somewhat counterintuitively, to comply with this mandate, the government must also let private parties create their own speech forums with varying degrees of speech protectiveness. In the public arena, society must tolerate all sorts of ugly views and ways of expressing them, but private organizations are allowed to experiment with their own speech policies. As a result, one thousand flowers can bloom in public, and one thousand ways of deciding how best to grow flowers will develop in private.
Academic institutions should still find ways to promote the values animating First Amendment doctrine. In the spirit of academic inquiry, students should be encouraged to express a variety of viewpoints, even if controversial or offensive. Concentrations of power that bully into silence those with minority views should be avoided, but only if the silencing is coming from nearly coercive methods. Students should learn to tolerate dissenting views even when they arouse anger, sadness, or unease, and should practice speaking up even when it is uncomfortable to do so.
The exchanges at Georgetown do not reflect the best spirit of free speech values. First, Dean Treanor, although entitled to make statements on behalf of the school, should use that power carefully. The dean of a law school has coercive power that is the closest analog to the government in the context of a private university. Heaping unqualified praise on Justice Scalia in a way that appears to represent the views of the community does impute views to faculty.
Professor Peller’s response is therefore understandable, although he ignored the fact that unqualified praise would likely be heaped upon any Justice who had recently died (especially a Georgetown (undergraduate) alum who did much for the university). Professor Peller’s misstep was to generalize the response of particular communities and speak, to all students, in a one-sided way about an important and polarizing Justice. Professors also wield a great deal of power to influence their students. Although different professors can experiment with how much they want to impose their views on students, claiming that, for example, particularly women will cringe at praise of Justice Scalia uses divisive rhetoric that may, due to his power in the classroom, stifle views that are charitable to originalism or to Justice Scalia’s approach to cases involving abortion or contraception.
Professors Barnett and Rosenkranz were therefore perhaps right to chastise Professor Peller for his one-sided presentation of Justice Scalia. However, their approach, to invoke the language of trauma, is about as corrosive to free speech values as it gets. If intended as a sincere attack on Professor Peller, their email is self-defeating and speech-stifling. As BLSA’s response demonstrates, anyone can import the language of anger and discomfort in an attempt to shame others with whom he or she disagrees. Students and faculty must, as a default principle, tolerate the shock of opposing views, not resort to the refuge of claiming they are too uncomfortable to counter the majority.
Although the best discussions are civil and tolerant, and although we should be aware of the emotional impact our speech has on others, free speech values depend on fortitude, bravery, and resilience. The Georgetown emails demonstrate that, ultimately, we cannot resolve disputes based on a race to the bottom of who is most shocked and angered. One of the best aspects of law school is that it teaches students to reason dispassionately and tolerate dissent, while also caring about one’s subjective sense of compassion and justice. Voicing emotional upset, in the right context, can be a great tool for learning about others’ experiences and ultimately enhancing one’s perspective on the world. However, shock and anger does not resolve discussions. The best way to promote productive dialog that leads to a satisfying conclusion is to include individuals of varying identities, with diverse perspectives, who share an eagerness to advance their positions while being open-minded and charitable to those with whom they disagree.
That is the lesson we can learn from the Georgetown email debacle. It’s one thing to alert others to your emotional upset, but it’s quite another to have that emotional distress end the discussion. It is one thing to say you feel unsafe, but a discussion must follow about why you feel this way, whether you are actually unsafe, and how best to accommodate the needs of everyone. After upset, the discussion must move to empirics, to logic, to principled distinctions based on morality, law, or fairness. Sensitivity to others’ feelings, in the private academic setting more so than the public sphere, is critical. But sensitivity is neither the start nor the end of the inquiry, if free speech values are to thrive.