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Friday, March 17, 2023

Just the Last Paragraph

I also think Howard's "asymmetrical censorship" post is wrong--I think! I am sure I disagree on some issues voiced there and in his post before that. But I wanted to focus solely on my disagreement with his last paragraph. Unfortunately, the more I wrote, the less sure I was of the meaning of that paragraph. I think the problem has to do with a sudden switch from one reasonably apt point (which is not to say I agree with it) to a different and inapt point. Here's that paragraph: 

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)--who previously threatened to stop hiring Yale grads as law clerks--argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

The National Review piece  urges Stanford and other law schools to discipline disruptive behavior by students, up to and including reports to the bar. (Based on other recent extrajudicial writings by Judge Ho on this subject, the editorial may be "controversial" and might even be right, but I doubt it was interesting or deep.) For public law schools, of course, imposing discipline is indeed invoking the force of the state. For private law schools, imposing discipline is only a second-order invocation of state force, which does not enter into play unless and until a student refuses to accept the discipline. At that point, however, the recalcitrant offender will be subject to ejection, ultimately backed by state force. And because law is a licensed profession that draws on delegated state power, any character and fitness examination is also backed by the force of the state. Law schools that report students to the bar for cheating, for instance, or notify the bar that a student has flunked out, has no business serving clients, and thus should not even be considered for licensure, are also engaging in Coverian violence--justified Coverian violence, in that instance. (The judges also kind of urge Stanford to notify potential employers of disruptive students. I say "kind of" because they offer this suggestion only if universities are unwilling to enforce the speech policy the judges think they should have or already have in place. As written, it's a stupid and ill-thought-out suggestion. But it does not involve state force.)  

It is not clear to me from what I have read of the student protests exactly what they want, and it would be a mistake in any event to attribute a single motive to a potentially disparate group. But I take it that some of them want Stanford to take the position that certain would-be speakers should not be allowed to speak at their school. I imagine that some of those holding such a view think Stanford's policy should actually be enforced, so that a speaker barred by such a policy will be, you know, barred. In the limit case--say, a person who is refused access as a visiting speaker but shows up anyway and commandeers a room--I imagine they will desire that state force be applied to prevent the trespass. (I hope that's their desire, since the alternative would be private violence.) It is possible that some of the students do not want such a policy, and believe only that Stanford should have a policy that there are no rules governing any form of spoken response to visiting speakers, or that its policy should be that there are no rules for counterspeech for some speakers, whether designated by the university or chosen in the moment. I could imagine an unattractive but reasonably consistent anarchistic version of this view, in which the rule on campus is that there are no rules. Every other version, every version that involves any selectivity at all--for instance, the version that distinguishes sufficiently-bad-opinion-holding visiting speaker Duncan from unobjectionable-opinion-holding visiting speaker Whitebread, or the version that distinguishes Visiting Speaker Lopez from Regularly Scheduled Class Lecturer Professor Lopez-Prime, such that students may shout imprecations at Lopez during his or her talk but will face discipline for doing the same thing to Lopez-Prime while he or she is teaching a class--at some point relies on the knowledge of the availability, at the end of the road, of the use of state force. "This is our jurisdiction!" ain't just a slogan. If we're going to "unmask" state violence, or whatever the academic cliche of the day is, we might as well do so thoroughly.    

So: These two judges urge universities to have one policy enforced by schools: discipline students who are disruptive in ways that, on this account, prevent speakers from speaking their piece at an appointed time and place. And they think law students who are sufficiently disruptive in this fashion should be reported to the bar, just as other students who are disciplined for misconduct are potentially reported to the bar. And the students, or some of them, appear to want schools, or at least their school, to have a different policy, one with uncertain bounds but that ultimately consists of a policy about what is or is not allowed by way of response to speech they object to in a law school. Neither are thinking of the sheriff as such, but both ultimately rely on state enforcement of whatever policy is in place. Are they wildly disequivalent or asymmetrical? No. 

This is what confuses me, because Howard makes a different comparison in the paragraphs leading up to this one. He compares private or semi-private efforts to prevent people from speaking or to penalize them from speaking, which can range from the uncontroversially acceptable to the questionable but relatively trivial to the serious and wildly disproportionate, to organized legislative efforts, popular of late at least as public political tactics, and which sometimes make their way into generally applicable law, to regulate speech. One may reasonably think both are serious. But one may certainly think with some good reason that speech-suppressive legislation is more serious and different in kind from private enforcement of would-be speech norms, including those that speech to suppress speech, even if one thinks some or all of these forms of private enforcement are also bad and serious.

If that is the asymmetry he is talking about, well and good. One can argue over the particulars, but I am not disturbed as such by the view that more formal and public efforts to control disfavored speech are more serious than more informal and private efforts to control disfavored speech. (That's fine with me in part because I'm an old-fashioned civil libertarian, the sort that used to be a card-carrying member of the former version of the ACLU, with a healthy distrust of government power, who believes there is some value to the public-private distinction. I'm not sure that's the current view of the intelligentsia, both generally and within the legal academy. For those who believe that the distinction between public and private power, including in the area of speech, is vastly overstated or false or outdated, which I don't think includes Howard, I would think it should be much harder to make an argument for "asymmetry." If anything, people with those views should be drawn to the "symmetry" side of the argument.)

But the examples in his last paragraph, which he seems to present as continuous with or the culmination of his early paragraphs, strike me as entirely inapt on this point. What the last paragraph describes is two sets of stakeholders both urging law schools themselves to adopt and/or enforce particular speech policies. Neither set is urging a law, or that a policy be imposed on the law schools by someone or something else. Any serious state action in either case is only an indirect consequence of the law schools setting and enforcing their own policies about speech: it comes about only if students fail to comply with the speech policy urged by each. It is reasonable to say that it's a mistake to treat as equivalent a law requiring a particular set of speech policies, imposed on universities by legislatures, and a protest, however inconsistent with academic values it may be, attempting to deny a platform to disfavored speakers. But this is not the example he uses in his last paragraph, since this is not what Judges Ho and Branch demand in their editorial, which--like the students--is demanding that Stanford or other law schools, of their own volition, take a particular approach to campus speech. What he does discuss, if dissected a little more thoroughly, is equivalent, or at least far more equivalent than what he talks about elsewhere in his post. He simply takes a sudden wrong turn at the end.  

Incidentally, the solution to such a dilemma, when presented by the stakeholders as a policy demand and not imposed by the state, is obvious and easy. Law schools considering policies that affect the exchange of ideas on campus can listen to the views of stakeholders such as students, alumni, donors, practicing lawyers, and so on. Then, acting through faculty governance and not just administrative fiat, they should select the policy that is most consistent with their academic status, their academic mission and duty, the demands of their discipline, and the trans-disciplinary norms and duties that constitute the academic profession and environment as a whole. They should make that choice and that policy clear, and they should actually insist on enforcing it. Listening to other stakeholders may be informative. But once the time to choose actually arrives, they must choose and enforce the policy most consistent with the duties and values of the academy, without regard to what any other stakeholders, including students and alumni, think or want. A law school's speech policy is a matter of faculty governance and faculty governance is not shared with students, sympathetic or otherwise, or with Judges Ho and Branch. They're all free to argue against and about it. But we are not free to delegate that decision to them, and it must ultimately be based on what academic duty demands. A law school (or a university) that does otherwise has simply failed in its duty. So there's really no hard problem on that part of the issue.  

Posted by Paul Horwitz on March 17, 2023 at 04:13 PM in Paul Horwitz | Permalink


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