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By Erika N.L. Harold
“Is it possible to both hold a peaceful protest and allow a controversial speaker to speak?” Cassandra Hill, the dean of the Northern Illinois University College of Law, posed this question to me last month, as she moderated a LexCon ’23 panel, which explored how schools can support students and protect First Amendment rights during times of conflict.
Fellow panelists included Mark Cordes, a professor emeritus at the Northern Illinois University College of Law; Michael Schwartz, dean and professor at the University of the Pacific McGeorge School of Law; and Matthew Streb, chief strategy officer and professor of political science at the Northern Illinois University.
Several attendees laughed sympathetically in response to Hill’s question, their reactions reflecting fraught experiences navigating this seeming minefield of competing free speech interests.
“Because I’m an optimist and believe in upholding constitutional rights, the answer must be yes,” I said.
Below are four strategies that I shared that law schools can employ when seeking to uphold the First Amendment, equip students to enter an adversarial profession, and inspire students to lead in a pluralistic society fractured by conflict.
1. Provide students with written policies governing speech-oriented events at the beginning of each academic year
Waiting to disseminate policies until a controversial event is scheduled may lead students to conclude that the policies are motivated by the administration’s views on specific topics, rather than transcendent principles that would be applied evenhandedly, regardless of viewpoint.
Proactively distributing policies as part of the law school’s orientation process allows for a broader discussion of the constitutional and academic principles at stake, separate and apart from any particular ideological issue. The policies should:
• Affirm all students’ First Amendment rights. The U.S. Supreme Court famously found in the landmark case Tinker v. Des Moines Independent Community School District in 1969 that it “can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
• Outline students’ First Amendment rights as applied to events. Students have the right to host a speaker who expresses controversial ideas, and other students have the right to listen to such a speaker. Dissenting students also have the right to protest the speaker or engage in counterspeech.
• Demarcate constitutional guardrails and speech/expressive conduct that is unprotected. The Constitution does not protect counterspeech or protests that disrupt the speech/event or prevent other students from hearing it, harassment or threats that are targeted toward people, and incitement—advocacy that is “directed to inciting or producing imminent lawless action” and “is likely to incite or produce such action,” as noted in Brandenburg v. Ohio in 1969.
• Outline actions that the law school will undertake if students engage in constitutionally unprotected speech/expressive conduct. Notifying students of how the law school will respond to harassment and threats, incitement, violence or disruption of speakers/events will help protect students’ due process interests. This notice should include the process that the law school will utilize to determine whether such speech/behavior has happened and disciplinary actions that may result. Given the ambiguity surrounding some of these issues, presenting these policies in advance of scheduled events will allow for a more constructive and less emotionally charged discussion regarding the parameters of protected/unprotected speech.
• Commit to viewpoint neutrality. Because regulation of speech cannot be “an effort to suppress expression merely because public officials oppose the speaker’s view,” as noted in Perry Educ. Ass’n v. Perry Educators’ Ass’n in 1983, law schools should emphasize that time, place and manner rules regarding hosting of speakers will be uniformly applied, regardless of viewpoint.
• Define what a successful controversial event on campus looks like. In an age when clips of protesters confronting and preventing controversial people from speaking circulate on social media, schools must define success from the institution’s perspective. Schools should state that if a student organization seeks to host a controversial speaker, the school’s goals will be to ensure that the students can hold the event, students who wish to attend and hear the speaker can do so, and dissenting students can protest and engage in counterspeech, as long as the event is not disrupted. Institutional success is all students being able to exercise their First Amendment rights; institutional failure is any of these groups being prevented from doing so.
2. Equip students with skills to constructively engage in civil discourse
Communicating effectively in contentious environments is neither intuitive nor easy. Rather, it requires emotional intelligence, active listening, analysis of differing perspectives, and sincere attempts to find spheres of mutuality, if possible.
As such, in addition to the negotiation and mediation courses already offered, law schools should provide interactive workshops and training on these “soft skills.”
This will not only equip students to engage in civil discourse in law school but also enhance their efficacy in negotiations, settlement conferences and business transactions once they begin representing clients.
Additionally, law schools should encourage student organizations that represent seemingly opposing perspectives to sponsor joint events on topics of mutual concern.
In the past, the American Constitution Society, a progressive legal organization, and the Federalist Society, a conservative legal organization, have co-hosted events on topics that include criminal justice reform, term limits and hate speech.
But the number of events that they have co-sponsored reportedly has declined in recent years, thereby diminishing opportunities for students to practice the art of disagreeing agreeably.
Encouraging student organizations from disparate perspectives to co-sponsor events on controversial topics will help students refine their negotiation skills, normalize civil communication during conflict, and find common cause—despite deeply held differences.
3. Make the case that civility and free speech are virtues worth upholding
“The freedom to speak and the freedom to hear are inseparable,” then-Justice Thurgood Marshall asserted in his dissent in Kleindienst v. Mandel in 1972. Civility and the First Amendment are therefore inextricably intertwined, as civility is what enables competing First Amendment rights to be given effect in a pluralistic society.
For those who view civility as a weakness, seeking to silence a speaker who expresses objectionable views may seem appealing, while allowing such speech to happen may feel like acquiescence.
But when only the loudest voices can be heard, the First Amendment is rendered inconsequential, and everyone’s free speech rights are more insecure. But civility—rooted in respect for the rights and dignity of all people—preserves everyone’s ability to speak and be heard.
Moreover, choosing to communicate winsomely increases the likelihood that those who initially disagree may be persuaded.
Ironically, civility and compelling counterspeech—not censorship—are the forces most likely to defeat offensive views, for merely silencing such views does not extinguish them.
As then-Justice Louis D. Brandeis concurred in Whitney v. California in 1927, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech—not enforced silence.”
4. Provide support to students who are negatively impacted by inflammatory speech
That the Constitution protects expressing certain ideas that many people may find detestable does not render such speech easier to hear. Law schools should acknowledge this tension and provide students with support in addressing these emotions.
This may include making counselors available when controversial speakers are scheduled, facilitating group discussions for similarly affected students, or offering workshops on navigating trauma and emotional triggers.
Law schools also should uniformly enforce their harassment and bullying policies if protected speech devolves into constitutionally unprotected harassment, threats or incitement.
While some people may deride these supportive resources, if speech is powerful enough to influence crowds, governments and movements, it is unsurprising that it may also influence some students’ emotions. Acknowledging this impact and providing support only underscores the power of speech.
Embracing the marketplace of ideas
For law students to fully harness their potential as lawyers and future leaders, they must be empowered and equipped to embrace the caldron and crucible that is the marketplace of ideas.
As the Supreme Court found in Keyishian v. Board of Regents in 1967, “The nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas, which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”
Erika N.L. Harold is the executive director of the Illinois Supreme Court Commission on Professionalism. Harold leads the commission’s extensive educational programming focused on advancing professionalism among the state’s lawyers and judges to build trust and confidence in the justice system.
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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
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