Good and Upsetting?
Free Speech at the Law School
When Professor Martha C. Nussbaum approached Professor William Baude about teaching a class together last year, she was looking to cultivate vigorous but civilized argument in the classroom—the kind that digs beyond the surface-level debate to “see where the differences kick in.”
And for that, Nussbaum, who tends to draw liberal students, needed a more politically diverse crowd. “Will is a magnet for the conservative students,” said Nussbaum, the Ernst Freund Distinguished Service Professor of Law and Ethics. “He’s very nurturing, and they trust him.”
The move was quintessentially UChicago: put people with opposing views in one room and encourage them to practice one of the most difficult aspects of free expression—disagreement that combines both rigor and empathy. It was a particularly poignant time to emphasize those values. Universities across the country were—and still are—grappling with the tension between academic freedom and the need to foster inclusion, with controversies emerging over shouted-down speakers, potentially offensive Halloween costumes, and tense classroom discussions. For Nussbaum, a philosopher appointed jointly in the Law School and the Philosophy Department, the issue was of special relevance. Free expression and justice have long been areas of focus; in fact, a forthcoming article, “Civil Disobedience and Free Speech in the Academy,” examines the differences between free speech and deliberately illegal acts of protest, as well as the reasons universities should clearly distinguish between the two.
And so, as she approached Baude, Nussbaum had a specific goal: she wanted to model a productive exchange of ideas by challenging students to go deeper, applying philosophical methods—examining the truth of one’s premise and the validity of one’s reasoning, for instance—to the discussion of issues like sex laws, marriage laws, pornography, prostitution, and drug laws.
“When people are really analyzing an argument, they’re not fighting,” she said. “They’re actually curious, they want to know the structure of the other person’s argument.”
In the winter 2016 seminar, Public Morality and Legal Conservatism, Nussbaum and Baude emphasized that curiosity. To help students reach beyond contemporary disagreements, they devoted the first several weeks to discussing the philosophical debate between liberals and conservatives, studying Edmund Burke, John Stuart Mill, James Fitzjames Stephen, Lord Devlin, and Herbert Hart.
They also were deliberate in their structure and tone, and they looked for ways to inspire crosscurrents of discussion. “Each week one of us would take the lead and the other would interject a lot of comments,” said Baude, the Neubauer Family Assistant Professor of Law. “We’d try to get the students talking.”
Nussbaum made it a point to discuss her own religious convictions and participation, and she and Baude were gentle in their treatment of differences. “People knew they couldn’t just hurl epithets at each other—there was a structure that we set up carefully,” Nussbaum said later. “We had to do things that went beyond the argument, and we had to model ourselves as the sort of people who like each other, who listen to each other.”
In the end, there was vigorous discussion, though this didn’t mean that every student felt equally comfortable speaking up. But, perhaps more importantly, the class underscored a central piece of the Law School’s approach to the free exchange of ideas: the key to finding the balance between speech and inclusion lies not in the retreat from ideas but in the forthright examination of an argument’s premise, the quality of the persuasion—and the practice of civil debate.
A university “should instill in its students and faculty the importance of winning the day by facts, by ideas, and by persuasion, rather than by force, obstruction, or censorship,” Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor of Law, told incoming University of Chicago undergraduates at the annual Aims of Education speech last fall. “Indeed, for a university to fulfill its most fundamental mission, for a university to be a university, it must be a safe space for even the most loathsome, offensive, and disloyal arguments.”
Free speech has always been a tricky endeavor. But in recent years, as campuses have become more diverse and students have become more vocal in pushing for policies that foster inclusion, the biggest challenges have stemmed from the delicate balance between making all students feel welcome and preserving the free exchange of ideas. Universities often want their students to feel safe and they want them to feel challenged, and there is no perfect way to do both, especially when unfettered discussion leads some to feel silenced. Even at the Law School—which, along with the University of Chicago as whole, has been a national leader in promoting free speech—students report feeling unheard or disinclined to speak up, said Dean of Students Shannon Bartlett, who is part of a Law School Faculty Diversity Committee, which also includes senior staff.
“There are questions about whose voices are being heard and whether we really are getting a full diversity of viewpoints within the classroom,” Bartlett said. “Students of underrepresented backgrounds, whether racial, ethnic, religious or ideological, [have told the Diversity Committee that they] don’t always feel comfortable speaking out or aren’t certain that their viewpoints are welcome. On the other hand, I recognize the burden that comes with being a member of an underrepresented group or with holding an alternative viewpoint. When you are one of the only or one of very few, it can be exhausting to constantly raise your hand and articulate a differing viewpoint. The truth of the matter is that over time it can feel isolating, which means there is a personal cost that distinguishes students’ educational experiences from that of their peers.”
There is sometimes a fear, too, that what one says in class will be reported and amplified later on social media, either in or out of context—something previous generations never had to worry about.
“It is challenging as a school to figure out how we ensure that we’re living up to our promise of diversity of viewpoints and free exchange of ideas. Right now, we’re being told that we haven’t yet achieved it,” Bartlett said. “It’s a constant work in progress.”
The commitment to free expression has long been a core value at the University of Chicago, and one that requires consistent study. In the last 50 years, the Law School has produced influential work exploring the ways in which civil discourse, the law, and humanity intersect. From the 1967 Kalven Report to the 2017 Report from the Committee on University Discipline for Disruptive Conduct, Law School faculty have helped lead the University in examining institutional neutrality, dissent and protest, and disruptive conduct.
The exact nature of the challenges have changed over time—in the 1950s, during the McCarthy era, the threats to free speech were largely external; now they often come from within, with students sometimes demanding the censorship of potentially offensive speech—but rarely has the subject not felt relevant. As a result, the Law School continues to explore it in policy, during events, and in the classroom every day.
A Challenge for All Times
“The ultimate good desired is better reached by free trade in ideas,” Oliver Wendell Holmes declared in his dissenting opinion in Abrams v. United States. Stone read this quote last fall to those gathered to hear his Aims of Education address, “Free Speech on Campus: A Challenge of Our Times,” at Rockefeller Memorial Chapel. “I first read this passage, written almost a century ago, when I was a law student at this University, almost half a century ago,” Stone said. “I think it’s fair to say that it was my puzzling over this passage under the probing tutelage of my Law School Professor Harry Kalven Jr. that, for better or worse, put me on the path to my career.”
That puzzling happened when Stone was a second-year Law School student in the spring of 1970, a few years after the release of the Kalven Report, an influential document chiefly authored by the Law School’s Kalven, a noted free speech expert. The report promoted free thinking among individuals—acknowledging that “a good university, like Socrates, will be upsetting”—while also codifying a University policy of neutrality in political and social issues. Despite this, Stone, speaking to a large gathering as the editor in chief of the University of Chicago Law Review, called upon the Law School to take a strong position on the Vietnam War—an act that prompted some chiding from Law School Professor Phil Kurland.
“He expressed disappointment in me for having been so naive as to think that the Law School should take the position,” said Stone, whose office, lit by a glowing neon mouth bearing the words “Free Speech,” is two floors away from where the upbraiding took place. “I, of course, later came around to understand how wrong I had been as a student on this question.”
It was a powerful early lesson in the conundrum of free expression: in order to make space for members of the community to probe ideas, the University couldn’t dictate a single right answer. It was a concept Stone would come to vigorously support as free speech became a focal point of his career—as a scholar, a Law School dean and University provost, and a sought-after advisor. In 2014, Stone led the University’s Committee on Freedom of Expression, which was formed to address national events that had “tested institutional commitments to free and open discourse.” The committee’s report reaffirmed the decades-old Kalven Report, concluding that “without a vibrant commitment to free and open inquiry, a university ceases to be a university.” The report was so well received by the Foundation for Individual Rights in Education that the organization successfully urged other academic institutions to adopt it.
Similarly, Stone’s Law School colleagues have served on committees devoted to teasing out the right balance on issues related to protest and disruptive conduct. Professor David Strauss led the Committee on Dissent & Protest, which was established after 2013 demonstrations at the Center for Care and Discovery, where students were among those charged with trespassing while protesting the age limit of trauma care at the hospital, a regulation that some saw as discriminatory to the area’s poor, black residents. For Strauss, the experience “made me realize how complicated it is” to design rules to regulate protests. He cited the range of facilities that the University operates and the difficulties that arise when students and community members mix in a potentially disruptive demonstration at a sensitive location. Ultimately, his committee decided to keep policy more general than specific.
“We wanted to keep the policies less detailed—to set out a series of guiding principles for both university officials and protesters, rather than detailed rules,” Strauss said. “We thought that having strict rules would either go too far in limiting the kinds of protests we should welcome or not far enough to protect sensitive University functions.”
The complexities institutions face were underscored this winter by demonstrations at the University of California at Berkeley over a planned speech by a right-wing writer known for using divisive language. In the weeks before the talk, the community was divided over whether it should be protected as free speech or whether it should be cancelled on the grounds that it was likely to constitute harassment, slander, defamation, and hate speech and violate the school’s code of conduct, a claim made in a letter signed by a dozen faculty members. In the end, public safety concerns drove the decision; Berkeley cancelled immediately before the event because protests had turned violent, a decision that still drew ire. The imbroglio highlighted just how difficult it can be to answer several root questions: when does free speech become a threat to the functioning of the school? How can a university protect the rights of demonstrators while ensuring that they don’t endanger the community or impede open inquiry and debate? How should a university deal with those who cross the line while protesting? And where, exactly, is that line?
Professor Randal C. Picker had to confront some of these questions after he agreed to lead the Committee on University Discipline for Disruptive Conduct, which was established last year following a series of disruptions at University events. “Everyone I talked to about [serving on the committee] said, ‘That’s a great issue; I’m glad I’m not doing it,’” said Picker, the James Parker Hall Distinguished Service Professor of Law and the Ludwig and Hilde Wolf Teaching Scholar. His committee, which had not yet released its report when the magazine went to press, has several tasks: establishing rules for managing student demonstrations; laying out an appropriate disciplinary apparatus; and most importantly, helping to “create an educational atmosphere to make sure that our students who are actively involved in campus protest understand how free speech works, what’s a ‘good protest.’”
Creating an atmosphere conducive to a productive and healthy exchange of ideas isn’t easy, in part because culture isn’t easily codified. But instilling a commitment to civility and an ability to empathize with those who may be hurt by protected speech is so essential, Law School faculty say, that they make a point of discussing it, modeling it, and giving students opportunities to practice it—again and again.“I don’t want students to think, ‘Oh that’s what free speech is, you get to go around and use racial slurs and engage in sexist or homophobic talk,’” Strauss said. “The danger is that students will come to believe: ‘If that’s what free speech is, I don’t want any part of it.’ And that would be devastating to us in trying to create the kind of culture we want, one that places the highest value on the exchange of ideas.”
The Law School works to teach that distinction—that just because you can say something doesn’t mean you should. “Part of our job here is to help students understand professional judgment,” Bartlett said. “The fact that we, as lawyers, should be protecting people’s rights to say whatever it is they need to say in whatever way they need to say it doesn’t mean that we don’t have a similar obligation to talk to students about how important words are and how important it is for us to think about the impact our words have on others.”
Sometimes that means helping students find productive ways to discuss sensitive topics without stifling debate. Other times it means getting the conversation started.
In his American Indian Law course, Todd Henderson, the Michael J. Marks Professor of Law, was mindful that some of the students had native backgrounds. He worked to make sure they knew they had freedom to express their views and that they were valuable to the discussion. “I jumped in on their side for the sake of argument and pushed them to what I thought was a better form of argument,” he said. “I recognize that the law impacts people differently depending on their circumstances—rich, poor, white, black, native, non-native. If you’re teaching law and you don’t recognize that fact, you’re an ignoramus.”
Learning Opportunities
In September 2015, a Wesleyan student newspaper faced defunding after an editorial criticized the tactics of some Black Lives Matter protestors. A few months later, an email regarding potentially offensive Halloween costumes embroiled Yale University in a noisy public controversy. In spring 2016 a University of Missouri professor lost her job after calling for a student videographer to be removed during campus protests. And even at the University of Chicago, a letter from Dean of Students John Ellison to incoming students drew ire after its pro–free speech message sparked criticism that the University wasn’t sensitive to student concerns.
When expression butts up against issues of student safety, academic security, and personal identity, tensions flare. Understanding why is important, even if the ultimate goal is defend the speech—and Stone was able to gain insight on this when he attended a conference at the National Constitution Center that featured prominent student minority leaders.
“It was interesting to hear in the three-dimensional sense about how separate some students feel in these institutions,” he said. The experience left Stone torn between thinking “‘Grow up’ and ‘I wouldn’t want to feel that way myself.’” The challenge, Stone said, is figuring out how to address students’ issues without sacrificing free speech. “You don’t want to say, ‘Deal with it,’ but you also don’t want to create an environment that’s a fantasy land so that the day they graduate they discover ‘Oh my God—now what?’”
When students voice their needs and concerns, conflicts sometimes arise—like when students actively disrupt events with protest—but these situations also present learning opportunities. “It gives institutions the information to try to figure out how to alleviate those concerns,” Stone said. “It’s not a good thing to have students in your community feeling alienated, marginalized, and not valued.”
Similarly, conflict and discomfort in the classroom can help students develop intellectual empathy and critical thinking skills—which is why Herschella Conyers, clinical professor of law, all but hopes to make her students feel uneasy in her Life in the Law class.
“It struck me that the people who find capital punishment to be murder and the people who find abortion to be murder usually are not the same people and go right by each other with the same argument,” she said. In the course, the students discuss topics like abortion and the death sentence, with Conyers’ selective input—it’s on them to figure it out, with two general guidelines: “The word ‘stupid’ will not come out of your mouth in my class, and before you speak, be mindful of the fact that you are totally unaware of who you are sitting next to. There are people in that room who may have aborted, people who may have chosen not to—and either might have regretted the choice.” On the first day of class, she tells her students, “These are emotional topics, but if lawyers cannot teach people how to come to the public square and talk, not just yell at each other, I don’t know who else can do it.”
In his Elements of Law class, Strauss often throws first-year students into the deep end when he calls on them to provide opposing arguments on controversial issues. Strauss, the Gerald Ratner Distinguished Service Professor of Law, often is described as a master of the Socratic method, challenging, expanding, and translating his students’ input.
“A lot of times I ask students to make arguments against the position they’re inclined to hold,” he said. “I think that’s a good habit of mind to get into, to think, ‘I believe this, and I’m pretty sure I’m right. But suppose I had to argue for the other side. What would the other side say?’ You have to earn the right to be confident about your views, by trying to answer the arguments on the other side.”
In Action
Law School professors model this in a variety of ways. For instance, during a fall 2016 Law School debate, Conyers defended the sentencing of Brock Turner, a Stanford student accused of rape, even though she knew it would likely be an unpopular position.
“There’s no point in doing this if you’re going to pander,” said Conyers, who codirects the Criminal and Juvenile Justice Project in the Mandel Legal Aid Clinic. “The only way a conversation has any merit or worth is if somebody’s willing to say the hard stuff. I have some friends who will tell you, ‘Oh call her, she’ll say anything!’ I will say anything that I believe to be true. I try to be more courageous about that the older I get.”
Those who attended the panel seemed pleased by the discussion: “Students came up to me afterward, and said, ‘You gave me something to think about.’” When that happens, she said, it allays any anxiety she may have about publicly defending an unpopular opinion.
Sometimes the path toward enlightenment can be a little rockier. Henderson, known as a more conservative member of the faculty, sat on a November 2016 panel on safe spaces and trigger warnings that was cosponsored by a dozen Law School student groups, ranging from OutLaw to the Federalist Society. Henderson described it as a “surreal experience,” because while he’s in favor of trigger warnings as a “standard part of human communications,” he sensed that the students in attendance had already decided what side he’d take. But Henderson thinks that the Law School’s faculty have a duty to publish and express their opinions publicly, even if they go against the grain.
“Richard Epstein, who was one of my favorite professors, wrote an entire book about how he thought civil rights laws were unnecessary,” he said. “Dick Posner, who was a professor of mine, wrote about selling babies.” (Epstein, the James Parker Hall Distinguished Service Professor Emeritus of Law, published “The Problem with Antidiscrimination Laws” at the Hoover Institution, and Senior Lecturer Richard Posner, a judge on the Seventh Circuit Court of Appeals, coauthored “The Economics of the Baby Shortage” for the Journal of Legal Studies.)
“I was exposed as a student to my professors not just talking a good game about how free speech and ideas should be met with counter ideas,” Henderson said, “but they actually walked the walk.”
Informally as well, Law School professors aspire to model civil discourse in their interactions with colleagues. “I’ll say some things that make my colleagues do a bit of a double take, but they’re always willing to engage me. I think they know me well enough to know that my heart’s in the right place,” Henderson said. “I’m friends with all of those people.” He points to one particular colleague: “I count Martha Nussbaum as one of the biggest influences on my career and my way of looking at the world—and yet there’s probably a lot we disagree about.”
Difficult Conversations
Thomas Molloy, ’18, was impressed. A former pastor who “avoided discussing politics, especially from the pulpit, to avoid alienating congregants,” the California native attended a Law Students for Life event that discussed the effects of reproductive policies on children. “Despite addressing a divisive topic, it was such a professional presentation,” he said. At one point, a prominent student member of the Law School’s reproductive justice group raised her hand. “She raised some thoughtful points, and they were delivered with a respectful tone,” he said. “I thought it demonstrated well how to discuss a contentious topic and provide a space for students to share their views.”
This is where the impact of the modeling is evident: the seeking out of opposing viewpoints is so much a part of the culture that alumni often cite it as one of the ways in which the Law School shaped their thinking [see sidebar] and student leaders consider it a normal part of organizing a panel discussion.
Ayla Syed, ’18, a member of the Law Women’s Caucus, organized the Trigger Warnings and Safe Spaces panel that Henderson took part in. “We thought it was important to invite Professor Henderson as a conservative voice on campus in order to actually have a conversation, to have an understanding of the topic instead of just having people agree with each other,” she said. It is also why she asked Elizabeth Kiernan, ’17, president of the conservative and libertarian Federalist Society, to help organize the panel.
“The organizations planning it were a little more skewed toward having safe spaces, and we wanted to make sure all sides were heard,” Kiernan said, adding that FedSoc also tries to incorporate liberal perspectives at events to “start conversations that I don’t think are always started on their own.” Even though she feels like conservative students are in the minority at the Law School, she appreciates the freedom FedSoc has in organizing its events: “The school’s [tone is] ‘You’re adults.’”
Still, uncomfortable moments have arisen over classroom discussion of difficult topics. Students have described rifts that formed after a classroom comment was deemed by other students to be insensitive. Kiernan cited occasions when it seemed like liberal groups made assumptions about conservative students. “Conservatives and libertarians have a lot of competing viewpoints,” she said. “A lot of people would assume that if you’re conservative or libertarian you are pro-life, but I have friends who are incredibly pro-choice who are conservative or libertarian.”
Syed agrees that there ought to be less prejudgment between students with opposing views. “We could all do a better job of not assuming bad intentions,” she said. “You also have to be able to push back against someone saying your comments are racist, sexist, etc.” At the same time, she said, “I’m also not sure if it’s necessarily a bad thing if people are more careful with their words, especially at a law school, where we’re training to be masters with our language and to use precise language with our ideas.”
Often law professors will serve as a sounding board for like-minded students looking for support, but also push them to see the opposite point of view. “When students in the Federalist Society feel they’re being misunderstood, they expect me to approach it with a more sympathetic point of view, but as I think about it, the students I’ve written recommendation letters for, they’re split roughly evenly,” Baude said. Despite how they may feel, he said, at the Law School, “conservative students and liberal students have a lot more in common than most Republicans and Democrats.”
Kiernan appreciates that Baude doesn’t always tell her what she wants to hear. “Professor Baude does a great job of drawing out both sides,” she said. “If you gave a conservative answer, he’d come at you from the liberal side and push you on it. The best way to facilitate a discussion is when the student gives one answer, to keep pushing from the opposite viewpoint.”
In the end, Stone said, a big part of protecting the free exchange of ideas is recognizing that there are inevitable costs—and they often “fall most heavily on those groups and individuals who feel the most marginalized, unwelcome, and disrespected.”
“Universities . . . should help those students learn how to speak up, how to respond effectively, how to challenge those whose attitudes, whose words, and whose beliefs offend, appall, and outrage them,” he said in his Aims of Education address. “This is a core responsibility of universities, for the world is not a safe space, and it is our job to enable our graduates to win the battles they will need to fight in the years and decades to come. This is not a challenge that universities can or should ignore.”
Contributing: Becky Beaupre Gillespie
Open Inquiry
In the spirit of honest debate, we asked Law School students and professors what they would ask their classmates or colleagues. In typical Law School fashion, they provided honest answers to thoughtful questions.
Professor David Strauss to Professor Randal Picker: Do you think [issues regarding student discipline for disruptive conduct] are best addressed through relatively clear rules, or should there be some flexibility?
Picker: It’s interesting—when we’ve talked to students, our sense is they very much want to know where the lines are. The University of Chicago Police Department and Deans on Call want clear rules as well. I assume we’re not going to succeed—there are so many different situations. There is a University statute that defines disruptive conduct, but it is pretty open-ended. One of the things you realize as a lawyer is you can’t necessarily specify everything. You have to let the process work and hope to get it right over time.
Professor Todd Henderson to Professor Will Baude: I’m a loudmouth and unfiltered. Will is just much more serene and sedate and academic. He’s finessing “I’m a strong conservative in a liberal world.” Is he deliberate about his strategies or is that just his personality? Baude: That’s really funny. This is my personality; it’s not some strategic persona. I do think it would be really hard to stay sane in academia without a serene personality if you had really unusual views. This is an environment where people disagree with you all the time and you can’t just ask people to agree to disagree. I don’t know that I would enjoy this job if I didn’t have this personality.
Tom Molloy, ’18, to classmate Ayla Syed, ’18: Do you feel a tension between the free speech ethos and a desire to keep people safe? Syed: While I want to protect people’s right to express themselves without fearing government action, I also want our community to speak to and about each other with respect. Freedom of speech does not mean having the freedom to go unchallenged. I don’t question the right people have to say whatever comes to their mind, but I do question their choice to do so. There’s a distinction between those two that is too often blurred.
Syed to Elizabeth Kiernan, ’17: During the [trigger warnings] event, Professor Henderson pointed out that conservatives were ideological minorities on many college campuses, and I have to ask: if conservatives believe in the marketplace of ideas and if their ideas are minority ideas, isn’t that just the marketplace working? Kiernan: I agree that it is a marketplace of ideas, but we expect the market to respond to demand. It seems like there may be a disconnect between students and hiring committees. I’ve had conversations with students both at our law school and at law schools across the country about the desire for more intellectual diversity in the faculty. It seems like there is a monopoly of ideas on the faculties that don’t necessarily represent all of the ideological values of its student bodies. Thus, the market is failing to meet a clear demand.
My Chicago Law Moment: Learning to Disagree Without Being Disagreeable
When alumni return to the Law School for Reunion and other events, we sometimes ask them to reflect on the ideas and experiences that have continued to resonate in the years since graduation. Once a month, we feature these interviews in a video series called My Chicago Law Moment. One topic that comes up regularly: the Law School’s long tradition of encouraging vigorous, but respectful, debate. Here are a few things alumni have shared:
“At the Law School [I learned how] to understand and work with people who might be ideologically opposed to the ideas that I hold dear. That was a great skill that I have taken with me throughout my life.” —Laura Edidin, ’96
“At the University of Chicago and the Law School, people argued . . . [it made me] more willing to push back, but also more comfortable with give and take.” —Bob Lichtman, ’55
“The Law School taught me that even if you have a position that people might think is crazy or different, if it’s well-reasoned and you can make your point well enough, you can potentially get people to your side—or at least get people to understand your position.”—Ryan Dunigan, ’12
“My first year, I went to watch Cass Sunstein deliver a paper [and the professors] went at each other. You know, really hard. But what struck me was . . . they all made concessions—[and they were] much more persuasive because they had made those concessions. They weren’t trying to spin anything. They were trying get to the truth.” —David Chizewer, ’91
“The great thing about the Law School is that it sponsors open debate—there are always two sides to every story. And that’s true in every legal argument, too. [I learned] that I can make my arguments more compelling when I understand what the other side is saying.” —Casen Ross, ’15
“I was in a legislation class and one of my classmates challenged something the professor had said—it [had to do with] a different way of interpreting the Constitution. It was amazing—the idea that a student would challenge this. But everyone took it in stride.” —Vanessa Countryman, ’05
“Professors and other students do a wonderful job of teaching each other that there are always different perspectives. I think that has helped me . . . to question assumptions that I’m making and to think about whether certain problems or certain questions can be answered in different ways.” —Caroline Wong, ’16