Freedom of Speech or Freedom from Consequences? ABA Proposes Freedom of Expression Rules at Law Schools

The fight over so-called "cancel culture" is alive and well on college campuses across the nation, and law schools are no exception. Guest lecturers, potential professors, current faculty, and even Supreme Court justices have been the victims of severe criticism and protests by law students in recent years, and the American Bar Association (ABA) is preparing to do something about it.

The ABA's succinctly named Council of the Section of Legal Education and Admissions to the Bar (ABACSLEAB) announced their intention to consider a new rule after a recent meeting aimed at tackling the issue. The proposed new rule would mandate "written policies that encourage and support the free expression of ideas" for all law schools in the nation. But it raises the question of whether such a rule effectively forces law schools to protect free speech of some faculty and students by restricting the free speech of others.

Excerpts of the new rule make it seem fairly reasonable. For instance:

"Becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence-based arguments ... [c]oncerns about civility and mutual respect, however, do not justify barring discussion of ideas because they are controversial or even offensive or disagreeable to some."

It's hard to object to that kind of justification. After all, freedom of speech is at the core of American society. Of course the ABA would want to ensure robust debate and an honest exchange of ideas on law school campuses — even controversial ideas have merit, right? There may be First Amendment protections in place regarding protests, but as Stanford Law School Dean Jenny S. Martinez wrote to her students, "the First Amendment does not give protestors a heckler's veto.”

Who's Being Canceled and Why?

Any rule regarding protesting at a law school campus is necessarily complex. Is the ABA's new rule aimed at protecting speakers and professors who just hold unconventional political opinions? Few, if any, speakers are being protested because they believe the U.S. should have a less active role in fighting climate change, for instance, and no students are campaigning to remove professors who believe in repealing NAFTA or advocate against the elimination of cash bail for nonviolent offenders.

Many law students are willing and able to discuss political opinions with exactly the kind of level-headedness you'd expect from budding intellectuals. Generally, the recipients of the students' ire are guest speakers, lecturers, professors, and other faculty who hold views that are less political in nature and more about personal identifying characteristics like race, gender, sexuality, and religious affiliation.

The ABA and some affected parties have claimed that law students have been "canceling" people purely because of their closely held conservative beliefs. That may very well be true ... IF you consider racial, religious, and sexual intolerance to be part of the American conservative belief system.

What Happens Now?

As of now the ABA seems ready to move forward with its new rule. Each individual school will have the opportunity to implement their own interpretation of the rule, but they will all have to "... protect the rights of faculty and staff and students to communicate controversial or unpopular ideas and safeguard robust debate, demonstrations, or protests ... [and] forbid disruptive activities that hinder free expression or substantially interfere with law school functions or activities."

At least one member of the ABACSLEAB claims that the initial proposal arose due to concerns over legislative efforts to stop the teaching of critical race theory and other controversial subjects, although law students haven't been protesting the teaching of critical race theory. They would perhaps be likely to protest someone who denies the existence of systemic or institutionalized racism, however.

Time will tell what the new free speech protections will look like if and when they're put into place. It raises questions at the heart of many free speech debates: To what extent are protections encouraging open dialogue versus providing a shield for discrimination? To what extent is discriminatory speech allowed? And does freedom of speech mean freedom from consequences?

Related Resources:

• Can I Sue Someone for Getting Me Canceled? (FindLaw's Learn About the Law)
• Freedom of Speech(FindLaw's U.S. Constitution)
• Student Rights at School: Free Speech (FindLaw's Law and Daily Life blog)