The “campus free speech crisis” beat is dominated by nitwits and grifters. Any time law students protest an event — despite following all the rules surrounding civil protest — a coterie of life-tenured federal judges, high-powered litigators, and prominent law professors breathlessly explain on international cable news that free speech hangs in the balance because a gathering of 22-year-olds went to a classroom and booed a recognized hate group.
Free speech has nothing to do with any of this. The speakers aren’t being thrown in prison for being bigots and the students are voicing objections because protest is also part of free speech subject to time, place, and manner restrictions. The folks up in arms about “free speech” aren’t worried about getting silenced — indeed, they’re getting more exposure than ever — what they want is a new, authoritarian model of “free speech” that amounts protecting those with a microphone and silencing (indeed, punishing) the people who don’t have that power.
The latest kerfuffle from Columbia Law School strips this free speech argument of all pretense. It’s just about conditioning everyone to shut up and defer to their betters.
Columbia bragged on Instagram that its Federalist Society chapter got a chance to meet with Justice Brett “Keggy” Kavanaugh. A number of student groups posted criticism of this move. Columbia’s BLSA wrote:
Yesterday a coalition of affinity group leaders, including several from our board, met with Dean Yadira and Dean Lester to discuss the contents of our recent statement criticizing the school’s choice to uplift and platform Justice Kavanaugh and announcing our withdrawal from formal admissions and recruitment programming. To reiterate – we believe that our school’s choice to platform Justice Kavanaugh is symbolic of a pattern of behavior that our organization does not and will not support and will not be affiliated with.
You might think that this would draw praise from the conservative outlets constantly whining about free speech. After all, the refrain of these “free speech crisis” reports always drape themselves in rhetoric of “civility” and “debate,” suggesting that if those darn kids would just mind their manners and ask polite questions instead of carrying signs then everything would be all right.
Conservatives do not think it’s all right.
Daily Wire goes into a full meltdown about the audacity of law students to criticize the school’s ties to Kavanaugh regardless of the restrained rebuke before shifting to a series of barely connected complaints about public interest scholarships. Over at Volokh Conspiracy, David Bernstein used the opportunity to rewrite the Kavanaugh confirmation hearings and the FBI’s refusal to investigate as an exoneration:
(And, fwiw, I’m pretty sure that the students would react differently to news of a meeting with a particular former president who is truly “credibly accused” of sexual coercion. Hint: his initials are WJC.)
I guess this is partially right to the extent the students, unlike ASS Law’s David Bernstein, can distinguish between sexual harassment in the form of a consensual relationship based on asymmetric power relations and attempted sexual assault and would therefore talk a lot more about Clinton’s egregious crime and welfare reform policies. I guess because “sexual” is in both scenarios it’s all the same to Bernstein?
But also, there are reasons to object to the school trumpeting Kavanaugh wholly independent of the assault allegations. Are they not free to air criticism of powerful people in public now? I’d like to think they’re at least as free as the professor is to take questionably relevant potshots at Clinton.
In defense of Jonathan Turley, he focuses on one social media post that uses the acronym “WTF,” which gives him the tiniest of openings to run with all the “lack of civility” tropes. Even with the potty-mouthed post, everything involved remains entirely peaceful criticism, but that doesn’t stop Turley from summing up the affair as, “Columbia is expected to refuse to participate or recognize any event with the justice, who has never been charged, let alone convicted, of any crime.”
That’s important, because when normal people talk about free speech no one says “expected.” Columbia isn’t “expected” to do a damn thing. They did something. The students criticized it and exercised their freedom to not lend their effort to supporting it… and that’s okay. If Columbia finds the student’s position compelling, then it can change its mind and if Columbia prevails upon the students that’s fine too but no one is “expected” to do anything.
But the language of expectation makes sense if you conceive of speech as an authoritarian enterprise. For these folks, it’s not really that some individual students yell or use profanity, it’s that elites aren’t getting the deference they want. They don’t see speech as merely being free to share personal views because that might involve living with the consequences. They see speech as the expectation that the audience will shut up and uncritically cheer anyone important enough to demand a stage. In that world, when someone on the other side speaks, it’s a violent act to turn the tables of expectation.
The goalposts are always going to move. An angry protest is a threat to speech, a peaceful protest is a threat to speech, a protest in the room is a threat, a protest outside is a threat, a protest down the block is a threat, asking questions is a threat, and now “posting on social media that you don’t like Brett Kavanaugh” is a threat.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.