As noted when discussing the free speech outrage du jour at Yale Law School, I’ve struggled to find a principle that supports the argument that the student hecklers whose purpose of shouting down and silencing invited speakers isn’t as much protected speech as that of the invited speaker. There is no First Amendment doctrine that differentiates the speech of the invited speaker from that of the silencers, who are expressing their disapproval of the invited speaker being given a platform to speak.
It’s not that the argument favoring the invited speaker’s right to speak, as well as the right of those who came to hear what the speaker has to say, isn’t a sound argument. It most certainly is. It’s not that the hecklers contribute much of value when their only purpose is to prevent someone else from speaking. They most certainly do not. It’s a good argument. It’s just not First Amendment doctrine.
There is an argument to be made under the “time, place and manner” restrictions, except that forcing the hecklers to do their heckling elsewhere, out of the room, defeats the purpose of their heckling. They want to register their disapproval, but they want to do so in a manner that silences the speaker. Whether limiting hecklers’ right to heckle can be reconciled with time, place and manner restrictions, as a matter of legal doctrine, isn’t nearly as clear was some of us would prefer.
But what is clear is that the response, that speech silencing speakers isn’t free speech, is untrue. It is anti-intellectual, a flagrant violation of norms of civlity and propriety and, for the reasons put forth in the very rational argument against it, very wrong. But it is still speech, and it is still protected speech under the First Amendment.
Which brings us to David Lat’s open letter to Yale Law School Dean Heather Gerken.
As the Dean of Yale Law School, you can’t be liked by all people, all of the time. You can be liked by most people, most of the time—and you are—but sometimes you have to anger people, if that’s the price of doing the right thing. And right now, the right thing to do is to make clear to the entire YLS community, liberals and conservatives alike, that they must comply with Yale’s free-speech policies—whether they like it or not.2
There’s been a problem with the intellectual climate at Yale Law School for several years now. Some of it flows from the fact that progressive students (“Progressives”) view those who disagree with them—definitely conservatives, and even some moderates—as bad people (“Bad People”).
Progressives are free to think that their opponents are Bad People. They can exclude them from social gatherings. They can make Bad People feel unwelcome in affinity groups (already happening at YLS, with members of certain affinity groups being forced to choose between affinity-group and FedSoc membership). They can make fun of Bad People with satirical fliers.3
Some will immediately note that Lat puts the onus on progressive students for the harm, arguing that the “intellectual climate” is the fault of Yale’s Federalist Society for inviting “Bad People” speakers that compel progressive students to react. It’s not that progressives want to be rude, but that they are left with no choice because, as attributed to Edmund Burke, “The only thing necessary for the triumph of evil is for good men to do nothing.” Is it progressives’ fault that they do something so evil doesn’t triumph?
But it’s your job, as the Dean of Yale Law School, to tell Progressives that in an academic community based on free expression, there are limits to how much they can act on the view that their opponents are Bad People.4 Progressives can’t shut down duly organized events because they disagree with the speakers. They can’t weaponize anti-discrimination policies to punish the protected speech of their opponents. They can’t make up and spread lies about professors with unpopular views (or the students who dare to associate with those professors).
Lat places the onus on Gerken as Dean of Yale Law school to be the grownup in the room, which means that the children might get angry with you for telling them that they can’t indulge in tantrums whenever they want. Even more pointedly, he notes that Gerken’s failure to do so stems from a desire to be liked, or at least a desire not to be hated, to be called “complicit,” to be a “Bad Person too.”
It’s your job, as the Dean of Yale Law School, to remind Progressives of all this—even if they complain, call you “complicit,” or say you’re a Bad Person too.
While it’s not said expressly, although many very bold things are said very expressly, what’s broken down at Yale are norms of propriety that enabled the law school to weather such clashes in the past. There is the norm of intellectual tolerance, that even people with whom we disagree should be allowed to speak, no matter how much we disagree with what they have to say. There is the norm of acceptable speech, that isn’t limited to speech that conforms to the progressive orthodoxy on social and racial justice such that any speech more moderate than woke is anethama.
But most of all, there is the norm of the administration and faculty being the adults at Yale Law School rather than pretending to be the peers of law students who are just as entitled to lecture their prawfs as they are to sit through a lecture in torts. Whether David is right that what prevents Gerken from taking charge of Yale Law School when it comes to telling the students to sit down, shut up or get out is her desire to be liked is unclear. Perhaps she approves of the hecklers’ conduct?
It’s one thing for faculty members to take this attitude—but as Dean, you have a different role. It’s your job to tell tough truths, lay down the law, and enforce policies, even if it makes you unpopular, at least for a time. If you can’t be both feared and loved—and as the Dean of YLS at this fraught moment in its history, sorry, you can’t—then it’s better to be feared. So make the opponents of free speech fear you.
Lat excuses the faculty for their failure to behave like grownups. I would not be so kind. But he’s right to put the burden on Gerken to establish the norms of conduct at Yale, even if it makes her unpopular (at least for a time). Sometimes, the kids are going to be angry with the adults, but there is no other way to help them to mature into adults than to establish norms of acceptable behavior by changing the climate at law school to one of tolerance and civility, even if they have a doctrinal right to behave like spoiled children.
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