As a person that did not ace Constitutional Law, even I cringe a bit when I hear people group Facebook censorship as a 1st Amendment violation. It’s not, it’s clearly not — the 1st Amendment applies to restrictions and barriers imposed by governmental bodies — but free speech has taken this generalized meaning that applies to people voicing their opinions in public. This is how people have framed the controversy and it’s getting traction. The short of it should have been (and should be) whatever we call the instances where FedSoc lectures got turned into call-and-response performances, protest or no, is not governed by the 1st Amendment. These happened on the grounds of private institutions and the schools’ rules and regulations, not the Constitution, are the governing body of rules to look at. That said, spillover is real — and we’re gonna have to have this conversation if and when protests like these happen at a public institution. Maybe Rutgers Law will get hit with The RU Screw?
Assuming these things happened at a public school, and assuming similar calls for audience decorum under the aegis of “I disapprove of what you say, but I will defend to the death your right to say it,” my response to the discontent would be along the lines of what Hornet says to The Knight in the penultimate battle. The 1st Amendment protects a right to speak, not the right to be heard. In a public forum, the actions the students took would have been nothing more than what any seasoned standup would recognize as rough heckling, and not a damned thing more. I find this common sense notion needs saying given that a judge has already gone on record basically advising that people who use their 1st Amendment-backed right to protest be blackballed when it comes to judicial clerkships. These are my words of course, not his, but if you read between the lines, I think you’ll find there’s some basis for my interpretation. Maybe the reason Amy Coney Barrett either did not know or failed to name the right to protest shrined within the 1st Amendment because she knew that if she did, using any of it would have endangered her career as a Supreme Court justice.
This point is less legal and more rhetorical critique. Can we retire the whole respectability schtick when people you don’t like talk bad about the people you don’t like? All the “We must take the high road lest they do same / Reasoned counter-arguments at public forums are the only real option” arguments only make sense when your opponent isn’t already yelling at you about gay frogs and carrying out attacks on the Capitol. Decorum has lain bloody in the streets for quite a while now, don’t you dare pin the body on these students. I grew up seeing adults lynching and burning effigies of President Obama. People frequently spew Q nonsense and pussyfoot around saying “Fuck Joe Biden” by cheering on some dude named Brandon. Folks hem and haw at this, shake their heads sideways with a “well what can you do” attitude at this, but get up in arms and pen diatribes when the audience gets a little too rowdy? I guess crowds can only get loud and jeer when they’re supporting the idea that people can be shot in broad daylight. Literal Nazis and -Ists (Racists, Sexists, Ableists, choose your poison) of all kinds have platforms at prominent institutions and media outlets and the major quibble isn’t their talking points, but that we shouldn’t back talk them when they say trans folks shouldn’t be shown common decency? I’d rather some politician get booed than some father get arrested. There has to be some point when politeness gets exposed as permission, and I’d like to think the types of folks who will get targeted by these pushbacks continue to recognize that as well.
Is Free Speech In American Law Schools A Lost Cause? [DavidLat.Substack]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at firstname.lastname@example.org and by tweet at @WritesForRent.