Reflections on my Future as a Professor and the Future of the First Amendment

Today is my last day as a Climenko Fellow at Harvard Law School.  Tomorrow I leave Boston to become a professor at Ohio Northern Law School.  As I tell my students, transitions are a good time to reflect on how far we have come.

My time at Harvard has been spectacular.  I never became desensitized to the majesty of Langdell library or the privileges of working here.  I never tired of the enriching, capacious conversations that ignited spontaneously in the halls, in my office, and in the classroom.  Law schools are filled with smart, creative, thoughtful people.  We may disagree about priors, methods, values, and optimal results, but we can rationally converse about these points of disagreement, fighting through our own limited lenses, so that some increased understanding of each other and the universe is forged.  That is how we all make progress; that is a major purpose of being.

At HLS, I learned that being a professor is so much more than I thought it was.  Years ago, when I began to pursue a career in legal academia, my goal was to make legal doctrine clearer, more elegant, and more consistent.  I wanted to close the gaps in the law that undermined its beauty, uniformity, and fairness.  I now understand that being a professor includes that goal, but also requires an engagement with other disciplines, with ongoing conversations that have echoed throughout history, and with a broad range of perspectives on what the law is and what it should accomplish.  I have learned to trust myself and to doubt myself.  I have learned that I want to be a law professor, write scholarship, and work with students, more than anything else.

Leaving this fellowship is sad, but I am delighted and excited to begin my new life at Ohio Northern.  Next semester, I’ll be teaching torts and a seminar on speech torts.  I look forward to the adventure.  There is so much I want to accomplish.

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Part of what motivates me is that, like my own future, the trajectory of the First Amendment is uncertain.  Despite the fact that the current Supreme Court has been fairly protective of free speech rights, many in the legal academy and in politics feel differently.  Many academics find the First Amendment limited in utility, or have given up on our ability to achieve enlightenment through free exchange of ideas.  Many academics think the First Amendment is now a tool of corporate America, used to dismantle the regulatory state.  Both candidates for the Democratic nomination for President wish to overturn Citizens United, a decision that protects purely political speech based on the identity and capacity of the speaker.  (I would be happier with an amendment to the Constitution carving out a limited, clear exception to the First Amendment that allows for some campaign finance reform, but not a judicial repeal of the reasoning of Citizens United.)  Even my students (who have been exceptional, bright, wonderful people) seem disenchanted with a broad reading of the First Amendment, more concerned about the harms caused by speech than the value, on jurisprudential, political, cultural, and social dimensions, of expansive free speech rights.

I appreciate the positions of those who disagree with my hope for a continued expansive reading of First Amendment doctrine by the courts, and an elevation of free speech values in our culture and our discourse.  I understand that some have more egalitarian conceptions of the First Amendment, and that there is more than one way to be principled.  But I fear an America that cynically expects to marshal the First Amendment only for those it favors, or only for situations that are palatable, and abandons free speech when it undermines other political goals.

My views on the life of the First Amendment remain in flux, but I hope to dedicate some of my nascent career to getting this as right as we can.  As a founder of our current doctrine, Justice Oliver Wendell Holmes, whose lunchbox sits in HLS’s Treasure Room, said, the Constitution “is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge.”  I feel so fortunate to live in a time, and work in a profession, where I can dedicate myself to building and imparting knowledge, always aware of its limitations and imperfections.

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