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There are two tells that a lawyer did not pay much attention in Con Law. The first? Not respecting the wide range of issues affected by the Commerce Clause. You know what really grinds my wheat? Where exactly in the Constitution does it say that a man can’t grow a few extra stalks of chicken fuel because he doesn’t want to pick up a bag of feed from the industrial strength PetSmart down the block?! That guy was growing crops for personal use and he still got clipped by a trade prohibition without… trading?!
Anyway, the second tell is when people apply the First Amendment to private entities. Like Yale.
Conservative U.S. Supreme Court Justice Samuel Alito called the state of law school free speech “abysmal” during a speech in October, about a month after two federal appeals court judges pledged not to hire clerks from Yale Law School because of student protests against conservative speakers there.
In case your memory is a little fuzzy from liking beer a completely normal amount, I am happy to walk you through how endemic pretending private institutions even having free speech problems has been to the year’s legal news cycle. Yale’s “Free Speech” incident centered around a bunch of Fed Soc frat bros having a totally not racist or sexist “Trap House” party involving fried chicken and “basic bitch” ass snacks like apple pie.
Despite technically happening last year, the shitshow it bred spilled its fertile manure all over the judiciary, what with Judge Ho’s spite blocking Yale law students from clerkships in an attempt to own the libs.
Yale isn’t the only one desperately needing to clean its hands of this not-free-speech-no-matter-how-often-you-call-it-that mess:
The clashes over speech unfolded throughout the year and at law campuses across the country. The University of Pennsylvania Carey Law School in January initiated an ongoing effort to sanction professor Amy Wax after years of complaints over public and classroom comments many students deemed racist—a move Wax has said undermines her academic freedom.
Much like Yale carried over from 2021, Wax’s racial horseshit about Asians and Blacks is nothing new.
It has always been more of a “no student shouldn’t have to sit and listen to, or be subject to being graded by, some professor who thinks that they do not belong in the country — let alone the classroom,” that is to say a pedagogy thing, rather than a “Free Speech” thing. It was the same thing back when law professors were gunning for an excuse to drop slurs mid lecture because reasons. 2022 is just the year it became too hard to ignore. Well, not that hard for Wax. She is still the honored and distinguished Robert Mundheim Penn professor of law after all. In Penn’s defense, they very clearly state that she is a specialist in “issues of the labor market.” I just wish they were a little clearer in stating that her involvement is accusing Blacks of being resentful, shame riddled and envious.
But surely, these are just two anomalous fact patterns wherein the school happens to be a private institution that isn’t properly regulated by the First Amendment! It isn’t like all of the attention grabbing instances of “free speech” were actually at private institutions where the First Amendment had no actual purview, right? Sorry to break it to you. Once is an accident. Twice is a trend. Three times is Georgetown.
Two weeks later, many students at Georgetown University Law Center called for the school to fire newly hired faculty member Ilya Shapiro, after the conservative lawyer tweeted that President Joe Biden’s pledge to select a Black woman for the Supreme Court would result in a “lesser” nominee than his preferred candidate. Georgetown did not fire Shapiro, but he declined the post following the uproar.
Damn it! I hate to be the one to admit it, but a rare W for fellow Above the Law editor Joe Patrice is in order — none of this shit actually had anything to do with free speech, rather it was about Republicans wanting the right to be confrontational and exclusionary without facing consequences for it.
The “free speech” controversies have even enticed Berkeley Law dean Erwin Chemerinsky to throw his gauntlet into the fray. That’s kind of a big deal considering he wrote the book on the First Amendment. And the other ones. He’s an expert on the whole Constitution, actually. It is fitting too — the school he teaches at, University of California Berkeley, is actually a public institution. From The New York Times:
On the first day of the fall semester, Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, learned that a student group created a bylaw that banned supporters of Zionism from speaking at its events.
Mr. Chemerinsky said he rarely used profanity but did so in that moment. As a constitutional law scholar and co-author of a book about campus free speech, Mr. Chemerinsky said that he knew the group, the Berkeley chapter of Law Students for Justice in Palestine, had the legal right to exclude speakers based on their views.
But he also knew the bylaw, which eight other student groups also adopted, would be polarizing within the law school and used as a cudgel by forces outside of it.
I am generally not a fan of blindly deferring to people in positions of authority, but I make an exception here because, and I repeat, he wrote the book on this. More from NYT:
“A student group has the right to choose the speakers they invite on the basis of viewpoint,” said Mr. Chemerinsky, who is Jewish and a Zionist. “Jewish law students don’t have to invite a Holocaust denier. Black students don’t have to invite white supremacists. If the women’s law association is putting out a program on abortion rights, they can invite only those who believe in abortion rights.”
Mr. Chemerinsky said that excluding speakers based on race, religion, sex or sexual orientation would not be allowed, but he noted that the student groups were excluding speakers based on viewpoint. True, he said, many Jews view Zionism as integral to their identity, but such deep passions do not change the law.
Thankfully — and I wish you could feel the enthusiasm and aggression I am typing this with — other people who actually give a damn about jurisprudence more than Twitter culture or trying to get on Judge Ho’s good side have recognized that this is properly an issue with most of these schools internal policies or the general heuristics for discussion we would like to have in academic spaces, rather than an issue of supreme law:
Other legal experts noted that the controversy showed just how mangled the understanding of the First Amendment had become, even at a place like Berkeley, the epicenter of the 1960s free-speech movement. The debate, they said, should focus on whether these bans align with the academic ideal of open, intellectual debate. Even if student groups can prohibit speakers, should they? And should such bans be codified — formally adopted with a bylaw?
In short, let’s get this crap out of our system before the ball strikes on New Years. I really don’t see myself having the bandwidth for another Ilya Shapiro situation. Talking about it on TV was cool and all, but I get enough attention from the listeners of Thinking Like A Lawyer. If you haven’t been listening to ATL’s sultry legal tones so far, guess who just got their New Year’s Resolution.
At Berkeley Law, A Debate Over Zionism, Free Speech And Campus Ideals [New York Times]
Law Schools Faced A Free Speech Reckoning In 2022 [Reuters]
Earlier: Yale Law School Trap House Incident Not A Free Speech Thing No Matter How Hard Folks Try
James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students
Law School Seeking ‘Major Sanction’ Against Amy Wax… Cue The Whining About Academic Freedom
Law Professors Saying The N-Word Is Like A Damn Epidemic At Emory Law School
Lesser Qualified Bellyacher For Meritocracy Throws A Hissy Fit Because Job Isn’t Handed To Him On A Silver Platter
Again, People Pointing Out That You’re Stupid Is Not An Attack On Freedom Of Speech
Yale Law School Invites Boycotting Judges To Campus… Totally Not Cowardly Desperation At All!
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 cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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