A Future Wave of Speech Codes, Though Enforced Through Exclusion from the Bar and Not Just University Discipline?

I was asked to note an AALS panel, put together by the AALS Section on Women in Legal Education, and I’m happy to do so:

Saturday, Jan. 9, 8:30–10:15 am: The First Amendment Meets Cyber-Stalking Meets Character and Fitness

Cyber-stalking and cyber-harassment have made their way to the legal academy. Some scholars say that on-line attacks constitute protected free speech. Other scholars say that this conduct is tortious and raises serious equality and civil rights concerns since internet stalking is often directed at women and minorities. But what about the character and fitness requirements that law students sitting for the bar must satisfy? Do law students who engage in harassment, smearing, and other such conduct (on Facebook, blogs, “Above the Law,” etc.) raise fitness and professionalism issues? Is there a problem with law students using websites to make outrageous gender- or race-specific comments (often about other students or faculty members)? (See http://lawvibe.com/the-autoadmit-scandal-xoxoth/ .) Is this conduct beyond question as free speech or does this conduct raise character and fitness issues that law schools must address? Does the fact that it is technologically difficult to identify all abusive posters impact the calculus?

Deborah L. Rhode, Stanford Law School
Jack M. Balkin, Yale Law School
Brad Wendel, Cornell University School of Law
Lyrissa Lidsky, University of Florida, Levin College of Law
Danielle Citron, University of Maryland School of Law
Moderator: Elizabeth Nowicki, Boston Univ. School of Law, Tulane Law School

But I should also express my worries about the proposals that the panel appears to be aimed at contemplating.

If the panel were just planned to discuss the possibility that schools and state bars consider criminal and constitutionally unprotected conduct by students — such as making threats — that might be one thing. But the reference to “outrageous gender- or race-specific comments” suggests that the proposals would likely go considerably further.

That reference also suggests that we aren’t even talking about a general civility code, equally applicable to al outrageously rude insults. There are many familiar problems with such general codes — but the “outrageous gender- or race-specific comments” focus suggests that this code is aimed at suppressing offensive viewpoints, and not just uncivil ways of expressing all viewpoints. The rationale for that can’t just be that rude law students make rude lawyers, who might browbeat witnesses, make life hard for litigants, opposing counsel, and judges, and so on. (That rationale would itself be insufficient to justify denying someone a license to practice law based on otherwise constitutionally protected speech, but I set that aside for now.) The rationale must be that people who “outrageous[ly]” express racist or sexist views are unfit to be lawyers, presumably because they’ll act on those views in the future.

Once accepted, this rationale would be very hard to cabin. Obviously it would be hard to resist extending it to “outrageous sexual-orientation-specific comments,” or comments that express “outrageous” views criticizing Islam. Equally obviously it would quickly apply to all speech, on websites or otherwise. And of course who would be the judge of when the expression of an opinion — whether about typical students, about students who have injected themselves into public debates, about law professors, or even about a race, sex, sexual orientation, or religion more broadly — becomes “outrageous”? Who decides what is legitimate criticism and what is “smearing”? Who decides what constitutes “harassment” (perhaps under the now-familiar but still extremely vague and broad “severe or pervasive enough to create a hostile, abusive, or offensive educational environment based on race, religion, sexual orientation, etc.” standard)? Why, disciplinary committees in law schools staffed by law professors, plus perhaps disciplinary committees in state bars.

Many law students (not all, but very many) are already widely known to be very cautious about expressing views that they think the majority of their classmates, or even a vocal minority, may find offensive. The threat of social ostracism and subtle but career-jeopardizing retaliation by professors and even classmates, who will soon become potential colleagues and employers, is quite powerful. (Some such threat of retaliation through social pressure may even be good, though it always has potential costs to open discussion.) But when a few comments — whether deliberate or said in the heat of debate — can lead to the denial of a bar card (after you’ve taken out $150,000+ in student loans), how many students would feel safe discussing, say, the possible pluses of racial or religious profiling, or arguments that homosexuality is immoral, or the possibility of mental differences between the sexes or between races, or the alleged evils of Islam, or the question whether many students or professors of particular races lack sufficient qualifications and were instead chosen based on affirmative action? How many would feel sure, with their professional futures on the line, that of course no hostile low-profile university committee would treat the comments as “outrageous,” “smearing,” or “harass[ing]”?

I’m sure that most backers of these restrictions would stress that of course they’re not trying to shut down substantive debate, only incivility. But once viewpoint-based restrictions are accepted, once speech can be suppressed because it’s “outrageous” or “smearing,” it’s pretty hard to have much confidence that substantive (but to some “outrageous”) discussion of ideas will remain untouched; and even if actual punishments for such speech are rare, the risk of punishment may powerfully deter the substantive debate as well as the nonsubstantive smears (of which I agree there is plenty). That has certainly been the experience with “civility codes” at university campuses, and governmentally coerced restrictions on “harassment” in workplaces. It would be hard to avoid the same effect in attempts to exclude lawyers from the bar on the grounds that their speech bespeaks lack of “character and fitness.”

Now the panel announcement, like most such panel announcements, doesn’t lay a proposal on the table; I can only speculate, based on the questions in the announcement, what speech restrictions some people might propose. (In my experience even the panel discussions themselves often don’t focus on specific proposals, but rather discuss the issues more generally.) But I think the questions can indeed give rise to informed speculation about what some people are discussing. So I thought I’d express my views on the subject, recognizing that we’d have to have a more focused debate should there be some more tangible proposal for denying bar membership to people who, while students, have made “outrageous gender- or race-specific comments (often about other students or faculty members).”

Finally, I of course acknowledge that the Supreme Court has indeed upheld some restrictions on lawyers that aren’t applicable to ordinary citizens, on the rationale that lawyers are officers of the court. (See, for instance, Gentile v. State Bar of Nevada.) But what’s being discussed here is not a restriction on what lawyers can say while they’re representing clients, or what they can say in court. It’s not a greater level of tolerance for restrictions on false statement of fact when they are made by lawyers. (Some courts impose a negligence standard for false factual statements by lawyers about judges or court proceedings, rather than a knowledge/recklessness standard.) It’s not even a requirement that a would-be lawyer take an oath to support the Constitution, a requirement that the Court upheld only because it had been interpreted “extremely narrow[ly] and [in a manner] fully cognizant of protected constitutional freedoms,” basically just as an oath that one will support the Constitution (while of course being perfectly free to advocate that it be changed). What’s being discussed here is something that would affect a far broader range of commentary by would-be lawyers, whether online, on the university campus, or elsewhere.

(A note to commenters: While I don’t support the government’s denying people professional licenses because of those people’s speech — except when it falls into some of the usual narrow categories of unprotected speech — or universities’ disciplining students based on such speech, I not only support but enthusiastically practice denial of access to our blog to people who say things that are vulgar or pointlessly rude or insulting. I trust that the underlying distinction is obvious to our readers. So please keep the comments substantive and polite; remember, it’s a big Internet, and if you want to be rude, you lose very little by being rude on your own blog rather than on ours.)