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Daily Signal
Daily Signal
25 Mar 2023
Anna Low


NextImg:Is Insisting Law Students Respect 1st Amendment Akin to ‘McCarthyism'?

A Bloomberg Law columnist is upset that students at Yale Law School didn’t protest the First Amendment and shout down an invited speaker, James Ho, a Trump-appointed judge who sits on the 5th U.S. Circuit Court of Appeals.

On March 15, Ho spoke at Yale Law School, and according to Vivia Chen’s opinion essay, his commentary went uninterrupted by angry student protesters.

Following closely on the heels of another Trump-appointed 5th Circuit judge, Kyle Duncan, being shouted down by Stanford Law students, the fact that Ho’s speech was able to proceed without inciting mass hysteria should come as a surprise to many, Chen included.

By now, it’s obvious that college students feel emboldened to shout down speakers with whom they disagree or, as is often the case, threaten violence to prevent said speakers from being a part of the conversation at all.

Chen not only thinks that’s acceptable, but apparently feels that not threatening speakers should be cause for concern. She goes a step further to claim that holding disruptive students accountable for their actions constitutes a form of modern-day McCarthyism.

The argument that speech deemed offensive by some should be restricted fails to persuade in court. Precedent establishes that universities have a responsibility to uphold the unfettered expression of ideas on campus on First Amendment grounds—and for good reason.

From the country’s revolutionary birth to the social movements that have molded the nation into a fairer and better democracy, the First Amendment lies at the core of episodic events that inform meaningful change.

Allowing hostile audiences to dictate which speech is acceptable fuels a burgeoning cancel culture that is antithetical to the constitutional freedoms that underpin fundamental civil rights. While words carry with them the inevitable capacity to offend, that should be an invitation to productive, respectful, and lively debate, not cause for censorship.

If such speech is so intolerable, the most practical solution for students is to not attend the event.

Another solution to dissuade students from shouting down speech they deem personally offensive would be to penalize them for not only violating the First Amendment, but disregarding university policy.

Rules are the clear standards detailed in university policy that dictate what will and will not be tolerated. The former dean of Berkeley Law School, Erwin Chemerinsky, defends this construct, stating; “Colleges and universities must be clear and emphatic that attempting to shut down such events will not be tolerated and those engaging in it face disciplinary action.”

Key to that is the commitment to disciplinary action. If students are not in some way held accountable for breaking rules and flouting policy, universities are validating their behavior as acceptable. Faculty should likewise face disciplinary action for encouraging violent and disruptive heckling, as was the case at Stanford last week.

Ho and 11th Circuit Judge Elizabeth Branch vouched their support for holding disruptive students accountable. Acknowledging that many universities have demonstrated an unwillingness to impose any consequences on student disrupters, Ho and Branch suggest that “at a minimum they should identify the disrupters so that future employers know who they are hiring.”

That’s a “wild” and “lame” idea, according to Chen, who argues that, by making that suggestion, Ho and Branch are “proposing a form of academic McCarthyism.” She goes as far as to draw a parallel between schools holding students accountable for their actions to the FBI creating blacklists.

So, it’s acceptable to censor individuals when elitists in the media collaborate to do it, but if anyone suggests a consequence for bad behavior that runs counter to exercising restraint and demonstrating the qualities we want in an impartial judicial system, that’s a threat to democracy?

Chen’s assertion that respecting the First Amendment equates to McCarthyism, though absurd, is yet another claim that can only be viewed as disappointing but not surprising.

“Setting aside the concept of free speech for a moment, it seems rather harsh to condemn a 20-something to a forever no-fly list for rude behavior,” Chen writes.

This “no-fly list” is simply keeping tabs on disrespectful students who break the rules. It seems reasonable that professionals in the business of upholding the nation’s laws might want to know which young crusaders for justice don’t respect them. Chen’s arguments leave us to wonder if her real agenda might be to “set aside” free speech indefinitely, rather than “for a moment.”

“Rude behavior” is also apparently defined as treating invited guests with hateful, expletive-laced verbal assaults, damage to property, and threats of physical violence.

At Stanford, student protesters told Duncan they hoped his daughters would be raped. Instead of accepting this behavior as the norm, it would behoove universities to encourage decorum. Universities are failing to prepare their students for the real world by not seizing on these opportunities to teach about the values of professionalism and respect. 

The argument that students have a right to shout down speech they deem personally offensive is legally unconvincing and societally harmful. Universities must take every step necessary to aggressively dispel disrupters of the notion that they hold the power of censorship by not giving into the demands of disgruntled students, emphasizing the option of non-attendance, and holding students who violate university policy publicly accountable.

From an ethical and societal perspective, there’s a need to uphold our God-given rights as enshrined in the First Amendment. There’s no place these rights should be more valued and sacred than at institutions of higher education—and especially at law schools. 

Decorum is not old-fashioned, and universities who fail to teach it are failing their students. No employer wants to hire a loose cannon who disrespects colleagues instead of listening and having honest dialogue. Employers seek professionalism and teamwork, not unprofessional liabilities.

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