Inclusive Leadership in the Law: Prof. McConnell on Why Campus Free Speech is so Important

Stanford Law Prof Michael McConnell made this truly remarkable assessment of why campus free speech is so essential in a speech he gave at a Fed Soc National event. Conservative viewpoints are often the target of campus censors, and McConnell was reacting to student concerns about that reality of life in academe. Here is what he said:

"You are not the victims. [McConnell told Fed Soc students.] And I don't have a lot of patience with whining.

Yes it is unfair. Yes it can be painful. But you've been through the refiner's fire. You don't go a day in your education without being challenged about the nature of your assumptions--why do you believe what you believe. And you don't go a day in your education without having to figure out how to communicate with people who don't necessarily share your presuppositions. You are getting the finest education that young lawyers can get.

The victims of this one-sidedness are your liberal and progressive fellow students, who can go through an entire education without ever having their precious beliefs challenged, and without needing to learn how to make a real argument--to make [logical] arguments instead of [merely shouting] 'check your privilege,' which I think is left-wing ideology-speak for 'shut the hell up.'

And there is one other set of victims, and that's society as a whole, because universities and especially law schools are raising the leadership class of our country, and I fear that we are raising a generation of people who either do not understand or do not believe that there are two, and often times more than two, legitimate points of view, and who believe that disagreement is something that can be suppressed. I think this is a major reason for the much-lamented extreme polarization that we are already seeing in our political culture."

That is a truly profound analysis by one of the major First Amendment scholars of this generation. Inclusive leaders in the law reject censorship and welcome  respectful debate in a wide-open university marketplace of ideas.

Here is the video of McConnell's talk. The entire panel is wonderful, but McConnell's comments are special and begin around the 47-minute mark. Inclusive leaders in the law reject censorship and the cancel culture and welcome a multiplicity of viewpoints on campus.

Universities & the First Amendment

Campus Censorship is Unconstitutional and Results in Damage Awards and Attorneys Fees

From Religion Clause blog (link) :

Thursday, May 27, 2021

Florida State Settles With Catholic Student Who Was Removed As Student Senate Head

As previously reported, last October a student court at the University of Florida concluded that the University's Student Senate violated the 1st Amendment when it removed Jack Denton, a Catholic student, from the Senate presidency. Student Senate took the action because Denton criticized Black Lives Matter, the ACLU and Reclaim the Block, saying they take views opposed to Catholic teachings. Now, the University has entered a settlement agreement (full text) with Denton under which the University has agreed to pay Denton $10,000 in damages and $1050 in back pay that he would have earned if he had remained Senate president. It will also pay Denton's attorney fees of $83,950. ADF, which represented Denton, issued a press release announcing the settlement.

 

 If you are the victim of censorship, I am always available to talk with you about it. 

If the censorship continues, you should get a lawyer and protect your First Amendment rights. Inclusion means inclusion, not exclusion.

Developing Inclusive Leaders in the Law

This is something I wrote to the Dean, in this year's annual report, about my understanding of developing inclusive leaders in the law:  

"My permanent strategic commitment has always been to help our students think logically and critically in an environment that values intellectual diversity and provides a wide-open marketplace of ideas. We need to teach our students to think critically, encourage them to speak courageously and avoid self-censorship, and we should have no part in indoctrinating them in any ideological worldview or particular vision of social justice. We are a pluralistic Nation with many different visions of what is true, what is good, and what is beautiful. No one has a monopoly on truth or social justice. We should encourage our students to work for the common good based upon their own visions of the good life and social justice. That is how we can build a truly diverse and inclusive community."

The most important part of this is my commitment to encourage each one of you to speak courageously and avoid self-censorship. A community in which everyone thinks the same is not a diverse community. A community in which anyone is pressured to affirm any particular ideology or worldview is not an inclusive community. Friends do not cancel friends because they disagree with their ideas or their political views. Live courageously in the law. Do not be bullied into self-censorship. Always be civil and respectful, but speak up fearlessly for what you believe! As my friend Prof. Robby George says, "Courage can be contagious. That's the good news. The bad news is that cowardice is almost always contagious." So be courageous! Or, as two of the Law College's values put it, "Listen Graciously" but never be afraid to "Act Courageously!" Never--never--bend the knee to censorship or indoctrination.

Prof. Robert George on Slipping into Totalitarianism

 Very relevant for the world in which we are living (and especially for academia):

When totalitarians or totalitarian movements in a society acquire sufficient political, economic, and/or cultural power, they deploy it to eliminate dissent. Their first move is to find formal and informal ways to punish criticism of the regime or movement, or its ideology. 

Next, explicit or implicit threats, sometimes supplemented by positive inducements, are used to get people to go beyond keeping their mouths shut to affirming the regime or movement's key ideological points even if they don't truly believe them.

To heighten the general sense of fear, examples are made of people who publicly dissent or refuse to mouth the official pieties. Those who succumb to the pressure and make gestures or statements affirming the movement's ideology begin to experience cognitive dissonance.

 Not wanting to think of themselves as cowards or liars, some gradually talk themselves into believing what they feel compelled to say. They really do learn to "love Big Brother."

 “The time has come for you to take the last step. You must love Big Brother. It is not enough to obey him: you must love him.” – George Orwell, 1984. Part 3, Chapter 4.

 I recently observed that we should change the title of 1984 to 2021, because it is more relevant today than ever.

Now, a bit more from Prof. George:

My message to students. Love truth. Don't fall so deeply in love with your opinions that you place them above truth and insulate them from challenge. Have the courage to speak the truth as best you grasp the truth--knowing that you are fallible and may be wrong or partly wrong.

 If you are a lover of truth and a truth-seeker you will not yield to bullies who try to intimidate you into embracing their opinions. Nor will you permit yourself to become a bully who tries to intimidate others into holding yours. You'll present your reasons and make your case.

The worst form of censorship is self-censorship, when you silence yourself because you fear being bullied or cancelled by your "friends." Inclusive leaders in the law don't self-censor. The best advice I have ever heard about when to speak out is this: Be silent when you want too badly to speak, and speak out when fear whispers "be silent." 

Sacrificing Life in the Name of Life

 

  

“How lonely sits the city that was once so full of people” (Lamentations 1:1).

“Then I will eliminate from the cities of Judah and from the streets of Jerusalem, says the Lord, the voice of joy and the voice of gladness, the voice of the groom and the voice of the bride; for the land will become a site of ruins” (Jeremiah 7:24).

There is a very thoughtful article in First Things about how we have sacrificed life to preserve life in response to the pandemic. Here is a link. And here are some choice excerpts:

The effort to preserve life by prohibiting the living of it doesn’t work. It can’t work. It would work if we were mere biological machines, who need nothing but air, food, water, sewage, and shelter. It would work if men and women were nothing but detached shards of humanity who can flourish in isolation, if communion were an optional extra. It would work if life were nothing more than food, and the body no more than clothing. It would work if we could save our life by merely preserving it. 

That’s not how human life is designed. That doesn’t fit the real world. And when we try to force life into that mold, it backfires. We’ve sacrificed all the social and cultural activities that lend beauty and richness to life, things that make life more than bare biological survival. We sacrificed life to preserve life. In the name of love, we canceled love. 

It’s bound to backfire. In our frenetic necrophobia, we flee death, avoiding contact with others, locking ourselves in our homes, obsessively washing our hands, avoiding public places and gatherings—all for the sake of survival. But a life without human touch, a life in which we never venture, a life without risk is no life at all, but a living death.

A true cost-benefit analysis of our response to the pandemic should seek to quantify both the health benefits won and the quality of life benefits sacrificed. How many lives were deeply affected by lost jobs, lost businesses, lost social and cultural life, and utter loneliness and depression? We listened only to the scientists and we silenced the poets.

Philadelphia Statement on Free and Open Discourse

 The Philadelphia Statement on free and open discourse in the marketplace of ideas is one I fully support. Here is the statement:

 

"Social Media mobs. Cancel culture. Campus speech policing. These are all part of life in today’s America.  Freedom  of  expression  is  in  crisis.  Truly  open  discourse—the  debates,  exchange of ideas,  and  arguments  on  which  the  health  and  flourishing  of  a  democratic  republic crucially depend—is  increasingly  rare.  Ideologues  demonize  opponents  to  block  debates  on  important issues and to silence people with whom they disagree. 

We  must  ask  ourselves: Is  this  the  country we want?  Surely not.  We want—and  to  be  true to ourselves we need—to be a nation in which we and our fellow citizens of many different faiths, philosophies, and persuasions can speak their minds and honor their deepest convictions without fear of punishment and retaliation. 

If we seek a brighter future, we must relearn a fundamental truth: Our liberty and our happiness depend upon the maintenance of a public culture in which freedom and civility coexist—where people can disagree robustly, even fiercely, yet treat each other as human beings—and, indeed, as fellow citizens—not  mortal  enemies.  “Liberty is  meaningless  where  the  right  to  utter  one’s thoughts  and  opinions  has  ceased  to  exist,”  Frederick  Douglass  declared  in  1860.  

Indeed, our liberal democracy is rooted in and dependent upon the shared understanding that all people have inherent dignity and worth, and that they must be treated accordingly. A society that lacks comity and allows people to be shamed or intimidated into self-censorship of their ideas  and  considered  judgments will not survive for long.   

As Americans, we desire a flourishing, open marketplace of ideas, knowing that it is the fairest and most effective way to separate falsehood from truth. Accordingly, dissenting and unpopular voices—be they of the left or the right—must be afforded the opportunity to be heard. They have often guided our society toward more just positions, which is why Frederick Douglass said freedom of speech is the “great moral renovator of society and government.”

The American tradition of freedom of expression, complete with its attendant responsibilities, is our school for democratic citizenship. It trains us to think critically, to defend our ideas, and, at the same time, to be considerate of others whose creeds and convictions differ from our own. It enables us to learn from, and peacefully live with, one another despite differences. It further instills in us an understanding that the mere exposure to ideas we find offensive is not an act of “violence.” And it admonishes us that if we value the freedom of expression, we must extend the same measure of freedom to others, even to those whom we believe have gone very wrong in their thinking. 

Tragically, we are losing these defining features of our democracy. Common decency and free speech are  being  dismantled through the stigmatizing practice of blacklisting ideological opponents, which has taken on the conspicuous form of  “hate” labeling.  

Responsible organizations are castigated  as  “hate  groups.”  Honest people  of  good  faith  are branded  “hate agents.” Even mainstream ideas are marginalized as “hate speech.” This threatens our ability to listen, discuss, debate, and grow. 

Blacklisting is spreading. Corporations are enacting “hate-speech” policies to protect people from “wrong”  and  “harmful” content. Similarly, colleges  and  universities are imposing speech regulations to make students  “safe,” not  from  physical harm, but from challenges to campus orthodoxy.  These  policies  and  regulations assume that we as citizens are unable to think  for ourselves  and  to  make  independent  judgments.  Instead of  teaching  us  to engage,  they  foster conformism (“groupthink”) and train us to respond to intellectual challenges with one or another form of censorship.

Humanity has  repeatedly  tried  expunging  undesirable  beliefs  and  ideas.  What self-appointed speech arbiters, whether in the majority or in the minority, fail to grasp is that they will likely eventually become  the  targets.  The winds  inevitably  shift,  sometimes rapidly. The  question  is whether  civility  norms  and  free-speech  safeguards  will  remain in place  to  protect  them,  or whether they will become victims of the dangerous precedents they themselves have established and advanced. 

To be  sure,  our  free  speech  tradition  is  not  absolutist.  It does  not  embrace  certain, limited categories of speech, such as defamation, obscenity, intimidation and threats, and incitement to violence. Yet the idea of “hate speech” exceptions to free speech principles is foreign to our free speech  ideals,  impossible to define, and often used by those wielding political, economic,  or cultural power to silence dissenting voices. That is why we must favor openness, to allow ideas and beliefs the chance to be assessed on their own merits; and we must be willing to trust that bad ideas will be corrected not through censorship but through better arguments. 

If we seek to change our country’s trajectory; if we desire unity rather than division; if we want a political life that is productive and inspiring; if we aspire to be a society that is pluralistic and free, one in which we can forge our own paths and live according to our own consciences, then we  must  renounce  ideological  blacklisting  and  recommit  ourselves  to  steadfastly  defending freedom of speech and passionately promoting robust civil discourse."

This wonderful statement reflects my understanding of the University as a free marketplace of ideas. Inclusive leaders in the law embrace civil debate and reject the cancel culture. The remedy for speech you dislike is not censorship but counter-speech.