an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Whenever I read about campus agitations I am struck by the willingness of students today to enlist university officials to help them engage in protest and to protect them from any fallout. The latest example (via Paul Caron) is the case of a 2L at Ohio State Law School. The details are sketchy but the basic story seems to be thus: The 2L student published an op-ed in which she described abortion as the "number one killer of Black Americans." The column generated criticism. Somebody (allegedly another student) posted a message to the author's Facebook page which she construed as a threat. In a subsequent column entitled "Standing Up for the First Amendment" the 2L explains that in response to this Facebook message she "went to my law school administrators to express concern about my safety." The result (she says) was that several law school deans met with her and "instead of practicing tolerance for my views and simply looking into my concern . . . lectured me on how my faith-based beliefs about abortion in my writing might harm my legal career" and "picked apart my article line by line, as I sat there visibly upset and in disbelief." Now, the 2L seeks to "inspire millennial conservatives on campuses nationwide to stand up for what they believe in and to stop letting bullies silence their views and infringe upon their rights."
It is surely an odd view of the First Amendment on campus that when your speech gets some push back the appropriate response is to hurry to a dean.
To be sure, a speaker need not suffer threats of physical violence. But that is why we have police, prosecutors, and courts. With good reason these entities--and not the dean's suite--are charged with responding to the unusual case when things have turned from heated debate to criminal conduct. We can set aside what the deans at Ohio State allegedly said: if they had simply responded "Not our problem, go away" the story would surely have played out the same. The 2L's position itself gets things backwards: you are not "standing up" for the First Amendment when you seek to empower campus administrators to help you speak.
The problem cuts across the political spectrum.
Some years ago when in Constitutional Law we were discussing Wickard v. Filburn (1942) (in which the Supreme Court upheld the power of Congress to penalize a farmer for growing wheat for personal consumption beyond his government-determined market allotment) one student spoke at length about what he thought to be the injustice of the decision. Farmers, he said, should have the right to grow what they want and anything else was tantamount to enslavement. After class a student came to my office, shut the door, and asked me what I was "going to do about" her classmate's comments on Wickard. She explained (for I perhaps seemed puzzled) that the characterization of the government agricultural program as akin to slavery was "offensive" and that I thus "needed to" "reprimand" the student either privately or in front of the entire class. I politely explained that that isn't how things work but that she of course was free to offer a response herself and yes indeed there were a good many ways in which one could argue that Farmer Filburn was not a slave. Because I began classes by asking if there were any questions or comments about what was covered the day before there was ample in-class opportunity to respond; I also operated a class discussion website so that was an alternative venue. Alas, the student never did give a rebuttal. I learned much later that instead she complained about my lack of response to (you guessed it) my dean, who was far too sensible to get involved.