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The speech police go to law school — and fail to learn anything


It’s been a busy week for the self-appointed speech police on college campuses; Monday saw protests not only in the U.S. at Lewis & Clark Law School but also in London at King’s College. The incident at Lewis & Clark is particularly interesting because not only did it take place at a law school — a student population that should, by any reasonable definition, know better — but also because the university’s response to the protest signaled not just acquiescence, but tacit approval.

{mosads}The Lewis & Clark Law School event, hosted by the school’s Federalist Society, featured Christina Hoff Sommers, a scholar at the American Enterprise Institute; as Sommers and others documented, nine student groups — the National Lawyers Guild Lewis & Clark Student Chapter, the Minority Law Student Association, the Women’s Law Caucus, the Immigration Student Group, the Jewish Law Society, OutLaw, the Lewis & Clark Young Democratic Socialists of America, the Black Law Student Association, and the Latino Law Society — protested the event after their demand that the Federalist Society rescind their invitation was ignored. They asserted that:

“Free speech is certainly an important tenet to a free healthy society, but that freedom stops when it has a negative and violent impact on other individuals.”

Sadly, these law students are incorrect. While their rhetoric may be lofty, it is not grounded in the facts; although courts have found a few discrete instances of prohibited speech — such as true threats and incitement — those examples are specifically defined, and in no way apply to Ms. Sommers’ speech.

But legal details aside, the spirit of their activism is sadly misguided — as decades of progressive jurisprudence proves.

The protesters seem to forget that free speech has traditionally been the means by which disenfranchised populations and minority groups have been able to gain support for their platforms — because this was the most powerful tool at their disposal.

As Harvard Law School professor Randall Kennedy documents in a recent essay in the American Prospect, “The Forgotten Origins of the Constitution on Campus,” free speech was leveraged to great success in the fight to overturn Jim Crow laws in the south. Certainly, those in power at the time were stridently opposed to civil liberties advocates exercising this right; in 1963, Circuit Judge W.A. Jenkins issued a blanket injunction against “parading, demonstrating, boycotting, trespassing, and picketing,” which Martin Luther King Jr. famously violated — in the wake of which, from his jail cell, he wrote his “Letters from a Birmingham Jail.”

In addition, by shutting down Sommers’ lecture, the protesters violated the rights of their fellow students. As Supreme Court Justice Thurgood Marshall noted in a 1972 dissent in Kleindienst v. Mandel, “the freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.” To treat fellow students in such a patronizing manner as to not allow their colleagues to hear a guest speaker is at best disrespectful and at worst, outright contempt.

Indeed, by prohibiting the female students in the room from hearing the speech, protesters seem to echo Supreme Court Justice Joseph P. Bradley’s 1873 concurrence in Bradwell v. Illinois, where he asserts that “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

Sadly, it appears that this disregard for the freedom of speech flows from the top. In an interview on Wednesday with Bloomberg Law about the incident, Diversity Dean Janet Steverson decried “absolutism with regard to free speech,” noting that:

“It’s one thing for people that have been privileged all their life to debate each other on the same footing. … It’s another thing when those power dynamics are different.”

Dean Steverson, who acquiesced to protesters and terminated Ms. Sommers’ remarks early, told Bloomberg reporter Patrick Gregory that she is currently researching whether allowing certain groups to speak ends up devaluing marginalized individuals. Alas, what she fails to take into account is that by disallowing certain scholars to speak, she has devalued the quality of the Lewis & Clark Law School experience for all students.

Nicole Neily is the president of Speech First. Previously, she served as executive director and senior fellow at the Independent Women’s Forum and as manager of external relations for the Cato Institute.

Tags Activism Christina Hoff Sommers Counterculture of the 1960s Freedom of speech in the United States Martin Luther King Jr.

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