Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law, has had a long and warm relationship with the faculty of the Cleveland Marshall College of Law. He is the author of a highly regarded textbook on Constitutional Law, was the founding dean of the University of California, Irvine School of Law, and is now Dean of the University of California, Berkeley School of Law. In his essay, Dean Chemerinsky exemplifies how central the role of university and law school administration is in the protection of the rights of free speech and free inquiry.
Dean Chemerinsky,….your witness.
I deeply believe that colleges and universities, and especially law schools, should be places where all views and ideas can be expressed. My hope is that law schools can be a model of how people can disagree respectfully and ethically, within norms of civility. But I increasingly worry whether that commitment is shared by all of my students and whether social pressure too often is silencing less popular viewpoints.
I shall begin with a few anecdotes. In September 2017, the campus Patriot Club was planning a free speech week where several controversial conservative speakers would be present on the Berkeley campus. In advance of this, Chancellor Carol Christ held a forum about free speech on campus. It was in a large, packed auditorium.
A student passionately addressed the audience and said she felt threatened whenever hateful speakers came to campus. She said it didn’t matter what the First Amendment required and called on the Chancellor to exclude them and protect the students. The student received enormous, sustained applause.
I was on the panel and spoke. I said that if the Chancellor tried to exclude these speakers, she would get sued and lose. When Auburn University tried to exclude white supremacist Richard Spencer, he and his supporters sued and won his right to speak on that campus. I explained that the campus would be liable for the attorneys’ fees for the excluded speakers and that there was even a chance that the Chancellor could be liable for money damages because she was violating clearly established law. I said the excluded speakers would make themselves out as martyrs. And nothing would be gained; they would end up speaking anyway. No one applauded my statement.
In November 2019, Ann Coulter spoke on the Berkeley campus. Students who went to hear her were spit at, had water thrown at them, and were assaulted. The next day, after viewing video of what occurred, I sent a message to the law school community condemning this behavior. I said that as a law school we needed to defend freedom of speech and that the appropriate response to a speaker we loathe – and I loathe Ann Coulter – is to engage in our own speech.
Many Berkeley Law students strongly disagreed with my position. They put up flyers on every bulletin board criticizing me for reacting against those who attempted to keep Coulter from being heard and for not speaking out against Coulter. Students came to my office and said that they regarded my message as offensive and Coulter’s presence on campus was violence against them. One angry student told me that I “did not understand the First Amendment” and that it allowed speakers like Coulter to be excluded.
But my major concern is something much less visible and I think more insidious. A student at another law school told me of speaking out in a criminal law class in favor of Second Amendment rights. From his description, his position was not extreme or stated in an inflammatory way. He said that his section’s Facebook group discussion was then filled with messages ridiculing and attacking him. He said that his reaction was never again to volunteer in class and also to remove himself from the section discussion group.
Last semester, I heard stories from professors teaching first year students of this kind of behavior: students using social media to sharply criticize positions with which they disagreed. Students reported being labeled as racist, not for expressing racial bias, but for expressing alternative viewpoints on controversial subjects. The result is that students who have views even slightly different have chosen to remain silent.
Everyone loses when this happens. We all benefit from having our views challenged by opposing arguments. At the very least, as lawyers we need to know the arguments on the other side so that we can address them. And hearing all viewpoints helps us to think through the most difficult issues.
It is clear to me that this is not unique to my law school. In talking to deans, faculty, and students at other law schools, I hear of similar stories. What goes on over social media is usually invisible to the professors unless students share it. But it is clear that this is a national problem and that it is not limited to law schools.
I am not sure what to do about this. How do we instill a commitment in free speech in our students? How do we explain to our students that silencing those with different views undermines everyone’s education? How do we convey the importance of reasoned discourse and respectful disagreement at a time when that is so absent from our popular culture?
To begin with, we – deans and faculty – must model the behavior we seek to instill in our students. I long have thought that the most important thing I did in raising my children was the example I tried to set for them. Also, as law schools, we need to be much more to be engaged in civic education at the junior high school and high school levels, as well as for the community. Those in administrative positions must articulate the expectations for their institutions. In my message to the law school community at the beginning of this semester, I addressed this directly and expressed a plea that we aspire to be a place where truly all ideas and views can be expressed and we always treat each other, even when we disagree, with kindness and respect.
I am not naïve and do not overestimate what such statements can accomplish. But we must acknowledge that there is an issue and begin to deal with it. I constantly try to explain to my students that we don’t need free speech to protect the ideas we like. We would let them be expressed anyway. Free speech is important for the views we despise. The only way my speech will be secure tomorrow is to protect speech that I don’t like today.