Sunday, November 29, 2015

Speech and Authority

Jason Mazzone

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.

How did our students learn that the remedy for bad speech is found not in more speech but in authority?                      

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