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How law schools can restore free speech and why they must

April 2, 2023

Freedom of speech has long been considered the sine qua non of the American experiment. But the First Amendment is worth little more than the parchment it’s written on without the support of lawyers. That’s what makes the latest episode at Stanford Law so concerning, and why law schools across the country must be vigilant in defending First Amendment values.

Last month, a group of boisterous law students at Stanford disrupted a school-sponsored event in which Judge Kyle Duncan of the Fifth Circuit Court of Appeals was invited to give remarks. Upset at his supposed denial of the existence of transgender women, the student protesters “jeered at every third word” in “a staged public shaming.” When Judge Duncan asked whether any administrators were present to tame the situation, Tirien Steinbach — Associate Dean for Diversity, Equity, and Inclusion — joined the fray, asking whether “the juice was worth the squeeze” and shaming the judge for “tearing the fabric of this community.”

But it isn’t Ms. Steinbach’s intolerance that’s most troubling. It’s the rank hostility towards free speech demonstrated by Stanford Law’s student body, whose outburst is reflective of a broader trend among law students. Indeed, from San Francisco to New Haven, similar episodes have transpired. Certainly, the First Amendment remains strong in a legal or doctrinal sense; today’s judges by and large remain committed to free speech. But that does not guarantee tomorrow’s will be similarly dedicated, and if these incidents are any indication, there are rough days ahead for the First Amendment.

Constitutional rights aren’t worth anything when the legal profession loses the will to defend them. Legal scholar John Langbein once observed that “our guarantee of routine jury trial is a fraud” — its enshrinement in the Sixth Amendment notwithstanding — “because legal professionals … preferred the convenience of doing [plea] deals to the rigor of trying cases.” And sure enough, despite our Founders’ promise to the contrary, only 2% of federal criminal defendants even demand juries anymore. The fear is that a similar fate awaits the First Amendment’s freedom of speech, but law schools have the tools at their disposal to stop it.

First, law schools must forcefully discipline students found to have infringed the free speech or associational rights of their classmates. Law students will be far less likely to materially disrupt events if they have reason to expect adverse consequences, whether that be loss of privileges (e.g., participation in law journals or clinics) or suspension and even expulsion in extreme instances of misconduct.

Second, law schools should add First Amendment law to their first-year curriculum or otherwise make it required. Basic classes in constitutional law do little more than pay lip service to freedom of speech, leaving students tragically uninformed of one of their (and their classmate’s) most valuable constitutional rights. Thus, after the Stanford episode, some student disrupters ironically attempted to justify their behavior as itself an exercise of free speech. Of course, the First Amendment does notprotect hecklers’ vetoes, the Supreme Court having held that hostile mobs are no excuse for the government to shut down speakers. A little knowledge of First Amendment law could go a long way in taming the passions of students, like Stanford’s, who think they are constitutionally entitled to deprive their classmates of free speech. Ignorance may sometimes be bliss, but ignorance of the law serves merely to inflame.

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Third and finally, law school faculty must actively encourage counter-speech while discouraging disruption. Last year at my university, the George Washington University Law School, an LGBTQ+ student group strenuously believed that guest speakers invited by our chapter of the Federalist Society were hateful, discriminatory, and belonged nowhere on campus. Even so, the event proceeded without any substantial disruption of the sort witnessed at Stanford, and faculty intervention likely had something to do with it. As the event approached, two professors of mine expressly discouraged students from disrupting the event, emphasizing the importance of free speech. Critically, one of these professors, herself an expert in First Amendment law, gave the LGBTQ+ student group a platform to advertise their counter-speech event, which was to take place simultaneously alongside the Federalist Society event somewhere else on campus. In so doing, she vindicated the old adage of Supreme Court Justice Louis Brandeis: for “falsehoods and fallacies, … the remedy to be applied is more speech, not enforced silence.”

Today’s law students are tomorrow’s judges and advocates — the very people upon whose respect and understanding the continuing vitality of free speech depends. Law schools must restore a culture that embraces the First Amendment. Otherwise, freedom of speech awaits the same fate as the right to jury trial contemplated by our Founders: death by neglectful legal profession.

Charles Brandt is a J.D. candidate at the George Washington University Law School and a writer and commentator for Young Voices.

Orange County Register

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How law schools can restore free speech and why they must

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