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Funny how this call for ‘civility’ seems to flow only one direction.
Every single accolade goes to the National Law Journal’s Avalon Zoppo for this sentence: “U.S. Supreme Court advocate Paul Clement said Monday that he’s worried law schools are harboring a tribal mentality among students that can hurt judicial legitimacy in the long run at a Federalist Society event about promoting civility on college campuses.”
Worried about a tribal mentality… at a Federalist Society event. Beautifully constructed. No notes.
Our old colleague David Lat actually joined this panel. Here’s how he promoted it over at Original Jurisdiction.
I continue to write and speak about ideological diversity, civil discourse, and free speech in the legal profession. On Monday, I had an op-ed in the Boston Globe about these issues in the world of Biglaw, and this coming Monday, I’m participating in a webinar about what law schools can do to promote civil discourse. The other panelists are Paul Clement, Jay Edelson, and Professors Renée Lettow Lerner and Eugene Volokh, with Judge James Ho moderating. Feel free to register here.
Interesting. Because a white law professor who uses the n-word in class after Black students explicitly asked him to please stop does not seem like a model of civil discourse. Ditto a wealthy former Biglaw partner who publicly attacked his firm’s professionalism… TWICE! Because the first time he wrote a whinging resignation letter that conveniently got leaked. The judge who threatened to boycott an entire school for not punishing students for a hallway protest of a speaker from a recognized hate group who ultimately was allowed to complete her whole presentation — and then invited back for another — also strains the common definition of civility. Even prominent conservative law professors have called out Judge Ho for his penchant to use his job to throw political punches.
It’s a curious panel for a talk about being more civil.
But that’s because none of this is really about civility, it’s about fragility. Eugene Volokh balks when Black law students feel emboldened to question his decision to gratuitously toss around racial slurs. Paul Clement is mad that his partners care more about appeasing clients who — like the overwhelming majority of Americans — support stricter rather than looser gun laws and see his work as tainting their brands. And Judge Ho doesn’t like that law schools aren’t doing enough to squelch dissent in favor of privileging an authoritarian model of “top-down” speech. They don’t want civil discourse, they want everyone else to stop questioning them.
“Civil discourse” might be having an open discussion with Black students about how to talk about racially charged cases without bringing denigrating and insulting language into the classroom itself. Because, you know, you don’t actually need to use slurs to teach the law surrounding slurs.[1]
“Civil discourse” would be having an honest discussion with your law partners about whether the repercussions of your book of business threatens their livelihoods and what you could do to help the firm’s overall business model. And “civil discourse” would at least involve not using your authority to force a school to stifle political speech against someone who denies some of those students’ most basic legal rights.
Lat offered the best point of the conversation, laying out the argument that many make that “free speech” is not neutral and inures to the benefit of those who already enjoy advantages in society. In a response ripe for parody, Volokh responded by noting that he wouldn’t invite someone defending slavery to campus blowing right by the fact that this gatekeeping role where, say, conservative law professors decide the contours of appropriate contestation, then opening the door for disingenuous calls for “civility” from the administration — or a certain federal judge — could chill dissent from those selected viewpoints is the whole point of that critique.
Unsurprisingly, Clement repeated the foundational lie of the conservative “free speech” model:
“[I]f I think back to my time in law school, I think the biggest difference between now and then is that back in the day … there was a shared commitment to the First Amendment. If anything, I think that the typical left-leaning law student was probably more committed to letting the Nazis march through Skokie than the average conservative law student. And that’s now flipped around in a way that the First Amendment itself has become another partisan issue where the sort of conservative view or what’s seemingly the conservative view … gets discredited,” he said.
No, it hasn’t.
The “typical left-leaning law student” then and now think that the Nazis can march and that people can protest the Nazis while they march. Before Jake and Elwood take action, of course, this is actually a pretty good depiction of how left-leaning law students envision Nazis marching:
This scene is something of a cultural artifact. The Skokie march was decided only a couple years before the movie, which is itself steeped in Illinois culture. The Nazi march looked a lot like this, and Jake and Elwood live out a fantasy that many people may have harbored, but that the government — correctly — kept at bay while allowing protesters to lodge their opposition without violence.
The right-wing “free speech” model is that Nazis should march and everyone should be quiet and dutifully attentive while they do it.
That’s neither civil nor discourse.
Earlier: Biglaw Isn’t A Cancel Culture, It’s A Business That Cares More About Money Than Your Feelings
Paul Clement Laments Kirkland’s Cancel Culture… Or ‘Capitalism’ As The Case May Be
Paul Clement Quits King & Spalding After K&S Moves to Drop DOMA Defense
Prominent Law School Professor Drops The N-Word After Specifically Being Asked Not To Do So
James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students
Yale Law School Had So Much Fun The First Time, They’ve Brought Recognized Hate Group Back To Campus!
Yale Law School Free Speech Crisis Mostly Fake News
Free Speech Is The Freedom To Shut Up And Listen To Your Betters, Trump Judge Explains
[1] Volokh is a big fan of this idea that being an advocate requires being forcibly subjected to potentially psychologically difficult ideas — even though that’s (a) not how learning actually works, (b) ignores that context matters and that hearing this garbage on the street or when you’re in the position of representing a victim in a suit is different than in a classroom, (c) wildly presumes that Black students will never possibly encounter or learn about racial bigotry without him acting it out, and (d) gets bizarre when he suggests that some subjects don’t require confrontation to learn but others do and that somehow that’s something he can decide? Most importantly, why is the education generated by activists marshaling support for a protest of a hate group inferior to sitting quietly and listening to that group for two hours and getting a 15 second question?
This isn’t the focus of this article, but Volokh had a slightly different take than some of the other panelists (befitting a more libertarian outlook) that is still wrong but in… distinct and interesting ways.
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.
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