Re-Examining Doctrine is a Good Thing (But Not an Answer); With Some Thoughts on L'Affaire Blackman

In a response to Howard's post below about the "Blackman incident," Mark Tushnet has a valuable comment, citing to recent work by Jeremy Waldron, arguing for a particular interpretation of heckler's veto doctrine. Waldron is not the only one re-examining heckler's veto doctrine these days. Howard has asked questions about it in a number of posts, and several recent papers have done the same thing. Several recent books are also re-examining these questions in light of current events concerning campus speech. (Or non-events, or "nothingburgers," as our degraded current language would put it. Some have argued that there is no campus free speech "crisis" or even much cause for concern. These two posts argue against that view, but also provide copious links to arguments that worries about campus speech are vastly overblown. I provide these links as much to give readers access to the arguments for that position as to give access to the arguments against it.)

While some of the comments following his post engage with him and with Howard, others, as I read them, are not kindly inclined toward the prescriptions some of those re-examinations suggest. This post is mostly about why I'm glad Mark and others are asking those questions, and why re-examining doctrine needn't lead to changes in that doctrine. But I begin with some general remarks about the Blackman incident and campus speech issues more generally.  

As a fairly traditional civil libertarian on speech issues, I tend to side more with the basic existing heckler's veto doctrine than with the suggestions that have been made for its modification or reform. More generally, I lament that the number of fairly traditional civil libertarians seems to have declined. I worry especially about the possibility that their current numbers are less likely to include university administrators, or at least administrators who not only agree with those traditional rules but are willing to enforce them, even if it means disciplining students. Many faculty and other observers of the university complain tirelessly these days about administrators who, in the competition for students and tuition dollars, spend more time trying to make students or prospective students happy with things like lazy rivers than pursuing and insisting on the pursuit of the traditional university mission. Or they complain about the consumerization or corporatization of the university. Because many of the latter type of critics are often on board with a number of student causes and protests, they less often connect the dots between those concerns and the possibility that administrators are less likely to enforce rules governing and protecting campus speech. Enforcing rules and disciplining students is unpopular and threatens damaging publicity. Administrators who want to avoid making a vocal group of students unhappy, or who want to avoid sustained publicity for some campus incident, will strain to avoid imposing discipline, and to move past some incident as quickly and/or quietly as possible.

Friends who are undoubtedly wiser than I am have described this as smart policy. But I think they're ultimately wrong, as a matter of both policy and respect. That includes not only respect for the academic mission but also respect for students--including the students who are protesting and who, under this vision, might be subject to discipline, with due process but up to and including suspension and expulsion. I don't doubt that some administrators support the students or the values they champion, abhor hateful speech, and are acting--or believe they are acting--for that reason. But some may be acting simply to avoid bad publicity or out of worry about the university's position in the marketplace for tuition-paying students. And others may believe they are acting for the right reasons, but those actions may be influenced by more worldly and financially driven concerns. Sincere people like to keep their jobs and avoid tsuris too. Letting students heckle or no-platform, or occupy offices and buildings, may seem like a way of showing respect for those students. But it also may be a form of condescension, one that waits them out without actually attending or responding to their views. Telling people they are wrong, or breaking the rules, and are subject to discipline sometimes involves taking them more seriously than simply letting them do as they wish does. (Arguing that there is no "free speech problem" on campus can also be a form of condescension, incidentally, although I wouldn't say that about every such argument. It may be that only a small number of students are pushing to radically remake the rules governing speech on campus. But they have genuine ideas and positions, and those positions will have real implications and substantial consequences if they are applied seriously. Arguing that these students' protests and demands are no big deal can be pretty close to treating them as a minor inconvenience or the province of a few students on the fringes, and not really listening to what they are actually arguing for.) As one of my favorite Onion stories notes, sometimes respect includes both listening to someone and responding with a simple "No."

One bright spot in Josh Blackman's recounting of the CUNY incident was that an administrator spoke up clearly to remind the students of the rules governing the event and insist that they be followed. One may certainly wish she had stuck around to make sure the warning stuck, but surely some credit is due. Arguments (as in this thread, with apologies for linking to Twitter) that there was no problem with the Blackman incident because the heckling was brief and Blackman was ultimately able to speak, even if accurate, are incomplete and even misleading without recognizing the possibility that this occurred precisely because the administrator told the students to let him speak or face disciplinary consequences. If no administrator had spoken, we don't know whether he would have been able to speak, or whether the heckling would have concluded indefinitely and with the intention or result of making it impossible for him to deliver his remarks. (After I began drafting this post, Erica Goldberg pointed this out in the comments to Howard's post as well.)  

This last sentence leads me back to Mark's comments. I am happy to give at least two cheers to Mark's straightforward willingness to revisit the heckler's veto doctrine, and the questions that this re-examination and similar efforts by others raise--even if they result in recommendations I don't agree with. It is equally important to note, however, that re-examining a case or doctrine doesn't have to end with a recommendation for change. Sometimes the re-examination may lead to the conclusion that the doctrine is right, or that proposed alternatives would be worse than the status quo. 

Doctrine is not frozen in stone and not immune from criticism or re-examination. A responsible criticism of legal doctrine will acknowledge that it is doctrine, rather than arguing that the law one would like to see already exists and waving away inconvenient precedents. But there is nothing wrong with revisiting and questioning even decisions and doctrines that have attained semi-sacred or "super-precedential" status. Every decision is subject to potential criticism, and every position can be revisited. (And usually is, about once every generation--sometimes with legal consequences and sometimes without.)

That's true of the heckler's veto doctrine too, as important as I believe it is to free speech and First Amendment law. A number of the important decisions of the era that gave birth to the heckler's veto, and to many other important cases and doctrinal lines, may be right but are less than fully reasoned. Many if not all of them were deeply influenced by and rooted in the times that gave birth to them. Those decisions may not have an expiration date. But we should take them out and look at them afresh every now and again, especially as the events that engendered them fade in time, memory, or relevance.

I make this point in part because I see the frozen-in-stone approach from time to time in law and religion, where I do much of my writing. Particularly where its intersection with equality is concerned, I see arguments and articles that describe some set of cases or doctrines described as constitutional "settlements," or various questions as having been definitively "settled." Even if they are not so intended--they could be, but they could equally be the result of conviction, or life in an epistemic bubble, or both)--such descriptions often serve as conversation-stopping assertions. (That's even more true where such assertions are followed by descriptions of re-examinations of or arguments against those "settlements" as insidious, conspiratorial, outrageous, and so on.)

Such arguments can have some descriptive accuracy: some questions are generally treated as either settled or sacrosanct or both by the courts and the legal establishment. We can acknowledge that social fact, but it shouldn't prevent us from going on to question those "settlements." Those settlements too often come from under-reasoned decisions, or are closely linked to particular circumstances or moments in time. Even if they were exquisitely reasoned, none of them are perfect and all of them are subject to re-examination. That's especially true for law professors, whose tenured positions and lack of clients give them the luxury of being able to question even "settled" doctrines, and put them at one remove from having any professional stake in those doctrines. They do not have to spend their time convincing courts that some doctrine is "settled" or some case is "easy." They are free from the obligation to take care to use only the sort of language that judges will listen to or that is likely to persuade them. If anything, they're not just free to re-examine even sacred precedents or so-called "constitutional settlements" or "super-precedents," but obliged to do so. 

But it is equally important to note that "revisiting" or "re-examining" a doctrine or decision does not mean abandoning that decision, and may in fact result in the conclusion that it is more important than ever to retain and re-emphasize that rule. Re-examination may reveal that the doctrine is a pretty darn good one. It may suggest that any proposed alternatives are worse than the existing rule, or that even if those alternatives might be better in theory, either their actual application would be imperfect or the costs of transitioning from one legal regime to another would outweigh any benefits. One may decide that the context in which the rule was originally crafted has little application to the present--or that it has equal application to the present, or even that other conditions require a heckler's veto doctrine (or some other rule) even more than it was needed in the first place. I have suggested that the possibility that something is "settled" does not oblige us to treat it as sacrosanct or beyond academic criticism or re-examination. But that doesn't mean there isn't value in settlement; it just means it's not a conversation-stopper.

This point should be obvious enough, but there are reasons to make it. Observers of scientific research have noted for some time now that researchers have strong incentives to find "new and exciting results," or counter-intuitive ideas, which are more likely to attract prestigious publications, press attention, and so on. They have argued that we need to give more value and attention to negative findings. The same is true in law. On the whole, "Rethinking [X]" will do better, place better, and get more attention if, in addition to being in tune with the times, it proposes something new, different, or  radical (or, more accurately, just radical enough but not too radical) than if the result of the rethinking is, "[X] is pretty darn good, or still relevant, or at least the best we can do." The fact that the conclusion is a negative one, or one in favor of the status quo, doesn't make the inquiry less important. The "Rethinking" part of "Rethinking [X]" may be driven by changes in facts, circumstances, law, social norms, legal ideas, current events, or other factors that make it important to look at the doctrine again; or enough time may have passed that it's worthwhile looking at the issues again. But the fact that it's important to re-examine the law in a particular area doesn't predetermine the result of that re-examination. Sometimes the best answer may be that the law is still the right answer and we should stick with it. Indeed, and without wanting to prejudge the results of what I hope will be an open-minded inquiry, one reason I'm grateful for Mark's comment, and for articles like Waldron's, is that they suggest that the time is especially ripe for a re-examination of the heckler's veto that supports its continued usefulness and encourages officials and courts to enforce it with renewed vigor. I'm grateful to Mark for inspiring such an inquiry.