When constitutional law scholar and prolific blogger Josh Blackman visited CUNY School of Law this week, he was met with a chorus of “shame” from protesters. The protesters, armed with signs labeling Blackman as a white supremacist and claiming that his legal analysis was “lazy and wrong,” talked over him in a coordinated way from the front of the room. The protesters seemed to outnumber audience members, perhaps because prospective audience members were concerned about the stigmatizing effects of attending, given that the protesters also turned their displeasure on audience members. When the protesters finally let Blackman speak, after admonition from an administrator, he began to engage an audience member about whether legal objectivity is a myth. The existence of legal objectivity, although not the subject of the talk, was an important meta question, given that the protesters likely do not believe in the full breadth of our constitutional guarantee of freedom of speech, which applies fairly neutrally to everyone, despite the offensiveness of the viewpoint.
The irony is, of course, that these protesters also benefit from our free speech regime, which protects their right to protest, even when their underlying sentiment, as one expressed, is “Fuck the law.” The way we have drawn lines to resolve the tension between the right to speech and the right to protest speech is the most sensible approach, except for those truly opposed to rule of law and process-based democracies. Given that law schools have an intellectual and professional mission to educate students in civil, civic discourse and to use logic and argumentation in a restrained, adversarial way, the fact that some CUNY Law students oppose the lines we have drawn is deeply concerning. Below, I will outline where the right to protest stops being protected speech and starts becoming conduct, and why this line benefits us all.
Josh Blackman was invited to speak, on the topic of campus speech, by the Federalist Society. At a public law school like CUNY Law, a university cannot discriminate on the basis of viewpoint against speakers invited by students. This means that Republican and Democratic groups, pro-choice and pro-life groups, must have equal access to student activities fees and the ability to invite speakers of their choice. This also means that the university is not giving Blackman a “platform.” The university is simply honoring its constitutional obligation, once it has opened a forum like student groups, to treat the groups equally regardless of viewpoint.
Of course, the students are allowed to protest Blackman’s presence. The view of some of the students – which seems to be based on a limited tolerance for certain areas of political debate – is that the Federalist Society is inherently racist. Some others have the view that free speech is an unfair right, as it shields racist speech that dehumanizes students. Those students are not wrong. Free speech shields many different types of offensive speech; the First Amendment wouldn’t need to exist to protect speech we all like, because no one would try to censor that speech. Free speech also safeguards their right to create signs reducing Blackman’s constitutional analysis to white supremacy. But what cannot and does not exist in any regime that supports pluralism, democratic participation, and intellectual engagement is a free speech right to engage in coordinated efforts to silence a speaker.
If these students had earned an invitation from the Federalist Society to speak, audience members, including Josh Blackman if he were to attend, could not coordinate with others to disrupt the speech. This is a reciprocal right, and, in that sense, it is neutral. The right may not be neutral in outcome because people like Josh Blackman, who have earned the right to an invitation, are given preferential treatment to the forum. However, if these law students prove they have something novel and articulate to say, perhaps they someday can receive an invitation where their right to speak will be respected.
An errant, “hey, you’re wrong,” is likely protected speech, but not an effective, premeditated campaign to undermine a forum designated for a particular speaker. This is the only approach that affords all of us equal rights to speak, listen, and engage. This is also the best way. As one audience member noted, he does not agree with Blackman, but he would like to engage with Blackman’s articles, the actual substance of his work. Substantive, informed, respectful discussions about issues that matter, especially controversial issues in which people have a significant emotional investment, are vital to the legitimacy of legal education.
To become a lawyer is to learn that civil, open-minded, orderly discourse is the only way to truly persuade – everything else is coercion and violence. [Edit- this is not to say that coercion and violence are not embedded into the law- the law is definitionally coercive – but that is not equivalent to true persuasion.] To become a lawyer is to recognize that although the system is unfair, and must constantly evolve, we must respect the perspectives of our adversaries, who generally have something important and enriching to offer. A legal education that renders students above this process, yet desirous of its benefits, had failed to achieve its mission – and has created unprincipled, dogmatic thinkers. I hope, and strive, every day to teach my own students how to disagree passionately and respectfully, while remaining open to intellectual evolution. Josh Blackman modeled these virtues at CUNY Law School. We professors must be the adults in the room. The system is not perfect, but adhering to the sensible fault lines of free speech is the way we change it.