One Speech-Torts Professor’s Thoughts on Handling the Upcoming Election

On Tuesday, I will be voting for President.  Although I am less politically engaged than the median law professor (to me, politics necessitates partisan, unprincipled, opportunistic behavior, and the law, at its best, manifests beautiful, clear, logically evolving rules), this election is too important.  Plus, I am now an Ohio voter.   I will even encourage students to accompany me to the nearby polling place so they can vote.  But I will not be sharing with the students the candidate for whom I am voting.  I will not even express pleasure or displeasure at the election results, despite the fact that I believe this election is both symbolically and practically monumental.

My approach here flows not just from my views about viewpoint diversity and my experiences as a student, but from the events of this election.   Despite the fact that one candidate is obviously (to me) superior,  this election has reaffirmed my view that certainty in one’s position is a luxury that does not correlate with correctness in one’s position.  This election has solidified my legal prior that we must allow speech to flourish freely while punishing harmful actions; this speech/conduct distinction is critical.  Although arousing hate and anger in others is condemnable, and although it can lead to terrible violence and cultural decay, the actions of destroying campaign signs (one colleague of mine had her yard toilet papered for having a Hillary sign out front), vandalizing public property, and (tragically) burning churches must be the punishable offense.  That level of certainty in one’s views – where destruction and lawlessness seem appropriate – is what prevents pluralism and diversity and progress.

More than anything, this election has reaffirmed my view that open-minded discourse is the best way to avoid political polarization.  Law school is a place for intellectual growth and moral evolution.  Students need room to develop their ideas.  Despite my firmly held opinion about who should win this election, I believe each student is entitled to his or her opinion on the matter.

As someone who studies both the virtues and vices of America’s exceptional free speech regime, I believe that allowing my classroom to be overtly political is an abuse of my position.  I recognize that reasonable minds can differ on the best approach to provide students with room to grow intellectually.  Students deserve law professors with a diversity of styles.  Many students enjoy professors who teach class from a particular viewpoint, even if they disagree, and allow students to argue against that view.  However, in my experience, students do not know enough to argue thoroughly against a professor’s views.  Often, when professors use class time as a way to impress upon students their own worldviews, students feel alienated or greatly deterred from countering the deeply held opinions of the professor.

Of course, the question of “what is political” is a loaded, highly subjective one.  Professors cannot avoid infusing classes with their own personal approaches to the law on some level.  Even the view that government use of force is ever justified represents an ideology.  When I ask my students to reconcile a case with a previous case, I am not just teaching them the fundamentals of lawyering; I am expressing the rule of law bias that, to be fair, the result in one case must follow analogically from precedent.  And, on a higher level of abstraction, I am expressing the view that our current system, built upon past injustices, can ever be fair.  However, the more abstract the ideology expressed, the more the approach is connected to a process or methodology, and the more the student can benefit from learning how to create a coherent methodological approach to the law (and the less my opinion about the outcome or result is pre-determined or emotionally charged).  I can teach students methodology, or how to think.  But even this is not a values-neutral exercise.  Thus, even at the highest levels of abstraction, I try to caution my students that I am more formalist than the median professor.  If they approach the law from more realist or critical perspectives, that is okay.  All I ask is that they keep an open mind.

Perhaps this election is different, though.  Many believe that these candidates have flaws that make them uniquely unsuited for office.  In many ways, this election is different.  One of my students is writing a paper about how our speech protections should be lowered based on Trump’s ability to incite anger and violence in crowds.  But Republican candidates have been called hateful, racist, and anti-woman before, based on policy choices like their stances on abortion.  And many Democratic candidates have been mired in scandals whose legitimacy has divided the nation.

I do not mean to set up a false equivalency between the candidates. They are not equivalent.  I personally do not even believe one candidate represents a reasonable choice.  But no one person, or one politician, holds a monopoly on truth.  This election has exacerbated our culture of unfriending and polarization, but it has also seen an encouraging reshuffling of political alliances.  Republicans are leaving the party, and Bernie supporters have joined the Johnson movement (this still doesn’t make a ton of sense to me).  Our current parties embody policy positions, philosophical alliances, and moral principles that are correlated, but need not always be grouped in one party or another.  Nothing is permanent.  If someone’s worldview or political positions stays static, I believe that’s more of a sign of personal weakness than strength of opinion.  This is why, despite my own sense of whether there are legitimate reasons to vote for, or dislike, Clinton or Trump, I respect my students’ choices.  I do not equate a vote for either candidate with automatic moral or intellectual failing (although I sometimes have trouble with that).  I do not believe speech simply favoring either candidate can be considered hate speech (and it certainly cannot be legally prohibited at a public university).  And I want to leave room for my students to grow and evolve in their own views.

Perhaps my approach of relative political sterility is easier for me to execute because neither candidate greatly represents my views.  I do strongly favor one candidate, but neither fully matches my own ideals on important issues.  Clinton’s communitarian ideals threaten to legislate a morality that I think does not leave enough room for individual rights or autonomy interests and would require too much government intervention.  Trump’s bigotry is shameful and unconstitutional; it threatens the significant equality values underlying our Fourteenth Amendment rights.  Clinton may appoint judges who wish the constrict First Amendment rights.  Trump has incoherent views on libel and is against free trade.  I could go on and on.  But ultimately, the candidates are not equally distasteful.  I will find it easy to cast my vote.  I just won’t be using my platform as an academic to do so.

I am not claiming every professor should act this way.  But some professors should act this way.  I remain committed to what I tell students on the first day of class, something uttered to me by one of my law professors:  every opinion is welcome here, so long as you express it in a respectful way.