No Way To Win The Debate

Four years ago, Josh Blackman was invited to speak at CUNY law school by its Federalist Society chapter on the topic of free speech on campus. It did not go well. The National Lawyers Guild chapter decided that whatever Josh had to say, it should not be heard. Its express reasoning was “fuck the law,” their words.

It seemed that Free Speech had become a “dog whistle” of the far right, which therefore justified disrupting any attempt to discuss or debate it. Was this a low point for law schools, a reaction to the extremes arising from fear and loathing of Trump, where thought, argument, debate and tolerance of a constitutional right in the hands of an “adversary” could no longer be tolerated?

Ilya Shapiro was invited to a debate at UC Hastings by its chapter of the Federalist Society. It didn’t go well either.

Earlier this week, UC Hastings hosted what was supposed to be a discussion between two professors on the opportunities afforded by Associate Supreme Court Justice Stephen Breyer’s recent vacancy. The college’s chapter of the Federalist Society, a conservative legal group, organized the event, which featured Rory Little, a UC Hastings law professor representing the liberal viewpoint, and Ilya Shapiro, executive director of Georgetown University’s Constitution Center, representing the libertarian right.

The discussion did not take place. Several dozen student protesters affiliated with the campus’s Black Law Students Association (BLSA) drowned out Shapiro whenever he tried to speak, interrupting the event for its entire planned hour. Administrators’ repeated pleas to let the discussion proceed were ignored by the activists, who chanted “Black Lives Matter” over and over again until Shapiro eventually gave up.

As Robby Soave phrases it, Ilya was deemed an “illegitimate speaker” because of a twit in which he characterized the pool of black women nominees to the Supreme Court as a lesser choice to Judge Sri Srinivasan, who would not be considered based on race and gender. Ilya’s twit has already been the subject of substantial discussion. Nonetheless, the debate was on, with Shapiro against Rory Little. But the BLSA decided that there could be no debate if it entailed Shapiro being heard. What was their argument?

The students of UC Hastings don’t have to like Ilya Shapiro, particularly after his controversial twit. They don’t have to listen to him. They don’t have accept him as a legitimate speaker worthy of tolerance, no less civility. And, at least arguably, they have their own right to be heard, to speak, although the silencing of an invited speaker by a protest designed solely to heckle, disrupt and prevent those who want to listen from doing so raises a difficult free speech dilemma.

But there remains another concern arising from this ugly and childish reaction by law students at UC Hastings, reminiscent of what happened with Josh Blackman at CUNY and why Melissa Chen avoided using “free speech” as the subject of her panel at Harvard. While the question of whether these students had a right to engage in this disruption may be a fair subject for debate, that fails to address whether this is the sort of tactic law students should employ, and whether a law school, of all places, should see this as a failure on its part of adequately preparing students to eventually join the legal profession.

At one point, Morris Ratner—UC Hastings’ dean of academics—attempted to quiet the students. He commended their passion and said they were welcome to protest with signs, but asked them to allow the event to actually proceed, per the college’s free speech policies.

“Free speech, including the right to do the form of expression I see on these signs, is a key right that we are required to uphold,” said Ratner. “I applaud those of you who want to express your views. There is a way to do that consistent with our institutional codes and norms.” The students then interrupted and loudly booed him.

Of course he commended their “passion,” as that’s what law school has become, a place where adults appease the unduly passionate lest they be the next victim of their outrage. His tummy rub wasn’t vigorous enough to either persuade students to stop being  like infants or to avoid becoming their target as well. Appeasement may not be as tactically wise as Ranter hoped.

UC Hastings put out a statement reaffirming its commitment to free speech and noting that the protesters had violated the student code.

“Disrupting an event to prevent a speaker from being heard is a violation of our policies and norms, including the Code of Student Conduct and Discipline, Section 107 (‘Harmful Acts and Disturbances’), which the College will—indeed, must—enforce,” said Ratner in a statement.

When asked what he intended to do about it, Ratner demurred. Was this stern statement that what they did was bad, BAD, enough? Would the protesters be subject to adverse action for violating the student code? It’s possible. So is a space alien invasion.

But what happened at UC Hastings comes almost four years after the CUNY debacle, meaning that these students weren’t in law school when the NLG shut down Josh Blackman. Yet another full class has come and gone, and law students are still of the view that the tactic of silencing people they hate and ideas they despise is not merely appropriate, but a better tactic than prevailing on reasoned argument, the primary tool of lawyers.

A perpetual concern, particularly in criminal defense, is that the next generation of lawyers will lack the skills needed to do their job, to zealously represent their clients. They struggle to tolerate the language we encounter in the ordinary course of our work. They are blinded by hatred of their prosecutorial adversaries, the law enforcement witnesses, the judge who denies their pleas for “justice.” Can they mount effective arguments against their clients if they can’t tolerate hearing arguments with which they disagree? If they can’t present a cogent view in contrast to Ilya Shapiro’s, can they do so against the summation of a prosecutor?

The reaction to these students was split, with many woke law students and baby lawyers applauding their action while more experienced lawyers were appalled at what they viewed as a failure of a law school, of law students, to demonstrate the minimal capacity to engage in the manner that will be expected of them as lawyers. If tactics like this are what law students deem acceptable, will they ever be capable of being lawyers?

20 thoughts on “No Way To Win The Debate

    1. norahc

      ” If tactics like this are what law students deem acceptable, will they ever be capable of being lawyers?”

      At this point, I’m wondering if they’ll ever be capable adults.

  1. B. McLeod

    This is what “progressive” “activists” do. There is no need for them to hear people who disagree with them, because those people are presumptively wrong. It follows that it is best if no other people are allowed to hear the wrong-speakers either. So they take care of that by spewing mindless noise.

  2. Rengit

    If law deans, professors, administrators, etc, keep tolerating or even outright justifying this conduct, eventually it will show up in courtrooms.

    Look forward to a future where in high-profile cases, like the Rittenhouse trial where there’s a woke side and a non-woke side, the woke side’s attorneys bring protesters to shout down the non-woke side’s argument, and a judge with the same attitude and demeanor as current law school deans lets the woke attorneys and protesters get off scot-free, because “they’re passionate about justice,” “we can’t ruin their career over this,” “discipline would be too harsh”, ” we can’t charge people for contempt when they’re exercising the right to protest.”

    1. SHG Post author

      To some extent, it has already shown up in the courtroom. Will judge’s take it? So far, no, but that too can change as young lawyer eventually become judges.

      1. Penny Katz

        Perhaps the courts should have a crying room and a safe room for these proto-fascists.

          1. Penny Katz

            Because as law school students, the actions they take to deny speech to others, is what I consider proto-fascist (or perhaps better, proto-authoritarians).
            And yes, maybe my concern about the ability of law students to hear speech they disagree with or to contain their “passions”, does reflect on me.

            1. SHG Post author

              The question was about the name-calling. Calling names is more their level. It’s not the level you want to be.

            2. Penny Katz

              Scott- point taken. I will refrain from using “names” as opposed to describing behaviors. Thanks!

    2. Eileen J. O'Connor

      Unless it happened, and the 53 minute video posted on Instagram just managed not to show it, Hastings’ own Prof. Little apparently didn’t move a muscle to squelch his students’ vicious, vulgar, intolerant, ignorant, and disgusting display. If that is so, he should be ashamed. The savages were shouting “we don’t want to hear from you,” but what they meant was “we don’t want anyone to hear from you,” although some students did want to hear from him. Positively shameful.

      1. Rengit

        I’ll try to be fair to Prof. Little: at least at my law school, membership in the BLSA and being a black law student at the school was nearly coterminous, though based on the UC Hastings video the BLSA certainly had non-black allies. If the majority of the BLSA shows up and engages in this sort of conduct, and you are a professor charged with keeping order and assigning disciplinary action, are you going to risk the charge that you have just disciplined the majority of the school’s black students? Especially when a sizeable number of faculty and administration buy into a very expansive conception of disparate impact and structural racism?

  3. Anon

    I’m anon for this comment, and you know why. As a PD supervisor, I’ve watched things change over the past 5-10 years. While they don’t scream over ADAs or judges (yet), too many young lawyers argue their ideology rather than law and are outraged because they don’t win, which in their minds, means judges are all immoral and unjust. They are very passionate. What they are not is effective. They cry about it even though the defendants suffer for their incompetence.

    And they refuse to believe that the problem isn’t “injustice,” but their incompetence. It’s already a nightmare and it’s going to get worse. So yes, this binary mindset is a critical problem that affects their ability to practice law, even though they will fight it and deny it, and they will absolutely not accept that they are the problem

    1. JR

      And they refuse to believe that the problem isn’t “injustice,” but their incompetence.

      Fun fact: Kalama Harris was president of the UC Hastings Black Law Student Assoc while a 2nd year law student. Just saying

      Frankly, the event was a missed opportunity to generate new and improved “don’t tase me, bro” memes.

      [Ed. Note: Video deleted.]

  4. Pedantic Grammar Police

    You are sadly behind the times. The education system didn’t spend 16 years teaching these people to be stupid by mistake. Their inability to reason is a feature not a bug.

  5. Dan

    I’m ashamed of my Hastings degree. In my defense, nearly 25 years ago, I don’t think it was quite this bad.

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