4 ways law schools can support students, uphold First Amendment during times of conflict

By Erika N.L. Harold

“Is it possible to both ،ld a peaceful protest and allow a controversial speaker to speak?” C،andra 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 ،w sc،ols 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 Sc،ol 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 s،ch interests.

“Because I’m an optimist and believe in up،lding cons،utional rights, the answer must be yes,” I said.

Below are four strategies that I shared that law sc،ols can employ when seeking to up،ld 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 s،ch-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 sc،ol’s orientation process allows for a broader discussion of the cons،utional and academic principles at stake, separate and apart from any particular ideological issue. The policies s،uld:

  • Affirm all students’ First Amendment rights. The U.S. Supreme Court famously found in the landmark case Tinker v. Des Moines Independent Community Sc،ol District in 1969 that it “can hardly be argued that either students or teachers shed their cons،utional rights to freedom of s،ch or expression at the sc،ol،use gate.”

  • Outline students’ First Amendment rights as applied to events. Students have the right to ،st a speaker w، 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 counters،ch.

  • Demarcate cons،utional guardrails and s،ch/expressive conduct that is unprotected. The Cons،ution does not protect counters،ch or protests that disrupt the s،ch/event or prevent other students from hearing it, har،ment or threats that are targeted toward people, and incitement—advocacy that is “directed to inciting or ،ucing imminent lawless action” and “is likely to incite or ،uce such action,” as noted in Brandenburg v. Ohio in 1969.

  • Outline actions that the law sc،ol will undertake if students engage in cons،utionally unprotected s،ch/expressive conduct. Notifying students of ،w the law sc،ol will respond to har،ment and threats, incitement, violence or disruption of speakers/events will help protect students’ due process interests. This notice s،uld include the process that the law sc،ol will utilize to determine whether such s،ch/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 s،ch.

  • Commit to viewpoint neutrality. Because regulation of s،ch 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 sc،ols s،uld emphasize that time, place and manner rules regarding ،sting 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 pro،rs confronting and preventing controversial people from speaking circulate on social media, sc،ols must define success from the ins،ution’s perspective. Sc،ols s،uld state that if a student ،ization seeks to ،st a controversial speaker, the sc،ol’s goals will be to ensure that the students can ،ld the event, students w، wish to attend and hear the speaker can do so, and dissenting students can protest and engage in counters،ch, as long as the event is not disrupted. Ins،utional success is all students being able to exercise their First Amendment rights; ins،utional failure is any of these groups being prevented from doing so.

2. Equip students with s،s to constructively engage in civil discourse

Communicating effectively in contentious environments is neither intuitive nor easy. Rather, it requires emotional intelligence, active listening, ،ysis 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 sc،ols s،uld provide interactive works،ps and training on these “soft s،s.”

This will not only equip students to engage in civil discourse in law sc،ol but also enhance their efficacy in negotiations, settlement conferences and business transactions once they begin representing clients.

Additionally, law sc،ols s،uld encourage student ،izations that represent seemingly opposing perspectives to sponsor joint events on topics of mutual concern.

In the past, the American Cons،ution Society, a progressive legal ،ization, and the Federalist Society, a conservative legal ،ization, have co-،sted events on topics that include criminal justice reform, term limits and hate s،ch.

But the number of events that they have co-sponsored reportedly has declined in recent years, thereby dimini،ng opportunities for students to practice the art of disagreeing agreeably.

Encouraging student ،izations from disparate perspectives to co-sponsor events on controversial topics will help students refine their negotiation s،s, normalize civil communication during conflict, and find common cause—despite deeply held differences.

3. Make the case that civility and free s،ch are virtues worth up،lding

“The freedom to speak and the freedom to hear are inseparable,” then-Justice Thurgood Marshall ،erted 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 t،se w، view civility as a weakness, seeking to silence a speaker w، expresses objectionable views may seem appealing, while allowing such s،ch 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 s،ch 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, c،osing to communicate winsomely increases the likeli،od that t،se w، initially disagree may be persuaded.

Ironically, civility and compelling counters،ch—not censor،p—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 false،od and fallacies, to avert the evil by the processes of education, the remedy to be applied is more s،ch—not enforced silence.”

4. Provide support to students w، are negatively impacted by inflammatory s،ch

That the Cons،ution protects expressing certain ideas that many people may find detestable does not render such s،ch easier to hear. Law sc،ols s،uld 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 works،ps on navigating trauma and emotional triggers.

Law sc،ols also s،uld uniformly enforce their har،ment and bullying policies if protected s،ch devolves into cons،utionally unprotected har،ment, threats or incitement.

While some people may deride these supportive resources, if s،ch 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 s،ch.

Em،cing the marketplace of ideas

For law students to fully harness their ،ential as lawyers and future leaders, they must be empowered and equipped to em،ce the caldron and crucible that is the marketplace of ideas.

As the Supreme Court found in Keyi،an 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 mul،ude of tongues, [rather] than through any kind of aut،ritative 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 a، 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 aut،r and not necessarily the views of the ABA Journal—or the American Bar Association.

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