Law Schools

Free Speech Is The Freedom To Shut Up And Listen To Your Betters, Trump Judge Explains

Judge's campus free speech rhetoric betrays that it's not about balancing viewpoints, but imposing authority.

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Judge Lisa Branch of the Eleventh Circuit lunged for her 15 minutes of fame last year, joining Judge Ho in a threatened boycott against hiring clerks from Yale Law School citing pervasive “cancel culture.” Since then, she’s enjoyed a mini-speaking tour, earning an official invitation to watch the Yale administration grovel in person and delivering a speech to Harvard Law School students this week.

There seem to be a whole lot of open engagements at elite institutions for anyone willing to talk about how there aren’t any open engagements at elite institutions!

Nonetheless, Judge Branch warned the Harvard Federalist Society audience that preserving an atmosphere of free speech compelled law students to “stand up, hold firm. I assure you that no one ever respects anyone who caves.”

Which is great advice! However, as to borrow from the Bluebook, “but see” the rest of this speech. From Reuters:

11th U.S. Circuit Court of Appeals Judge Elizabeth Branch, an appointee of former Republican President Donald Trump, told Harvard Law School’s Federalist Society chapter that she remained concerned about protesters who “shut down” conservative speakers they disagree with at law schools across the country.

In Yale’s case, she said the “straw that broke the camel’s back for me” was an event in March at which students disrupted a campus discussion with a conservative lawyer, Kristen Waggoner of the Alliance Defending Freedom.

First off, the “shut down” claim is overblown and misleading in general and outright false with regard to the Yale Law incident. The Alliance Defending Freedom protest — and, as a reminder, the ADF is an SPLC-recognized hate group — did not end the event. The event continued to its completion after protesters complied with Yale Law’s then-existing time, place, and manner restrictions for student protest.

But more to the point… what happened to all the gusto for students willing to “stand up” for what they believe in? Apparently, “no one ever respects anyone who caves” unless they’re caving when it comes to anti-gay bigotry. Then caving is just being polite!

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Branch argued law schools like Harvard and Yale should be doing more to enforce “robust speech codes” that make disrupting speeches on campus an offense and warned that student protesters who threaten speakers risk criminal prosecution.

For what it’s worth, threatening someone is already a criminal offense. Suggesting that administrations do “more” to stress the threat of prosecution seems like an effort to chill speech by cultivating fear that the school could characterize “loud” or “angry” but ultimately peaceful protests as a “threat.”

“Robust speech codes… for freedom!” rhetoric may be popular with conservative students because it tilts in favor of right-wing speakers as a practical matter, but the insidious part about this talk isn’t how it favors one side of a “right-left” balance, it’s how it drops an anvil on the “top-down” balance.

Because there really isn’t a “right-left” problem with free speech access. If a bunch of Federalist Society students wanted to stage a protest outside a critical race theory lecture in the exact same way Yale Law students protested the ADF, my response would be… go for it! Those students would be racist goons, but they can go right ahead and protest — “stand up,” as Judge Branch put it. Conservatives must afford the speaker the same benefits ADF received, with the protest moving outside after a pair of warnings allowing the event to continue for people in the room, but otherwise knock yourselves out protesting. It’s absolutely your right.

But there aren’t enough right-wingers in law schools to launch a significant protest. So rather than “hold firm” with their tiny protests, they want to invite right-wing speakers on campus and they want rules to make everyone shut up and accept it. “Free speech” in this calculation is all about “robust speech codes” and threatening dissent because it’s about recasting speech rights as the exclusive province of the speaker with the microphone — the speaker with authority.

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It’s this nod to elitism that gives this argument a viable coalition on campus. Conservatives want institutions to grant their speakers privileged status on campus and otherwise liberal law professors are willing to rubberstamp this in the name of protecting their role as the arbiter of who does and does not deserve to be heard. Right-wingers are willing to trade away the reciprocal right to protest left-leaning events if it protects fellow traveler elites from criticism.

Which, despite the rhetoric deployed by anti-protest professors, runs counter to furthering discourse. The top-down approach calcifies discussions along right-left poles that, in many cases, don’t merit substantive equivalency. Speakers from both “sides” can have a forum, but it’s intellectual dishonesty to erase that one speaker animates 90 percent of the community to turnout in protest.

But protest isn’t “real” speech to Judge Branch or Yale Law’s admin because protesters aren’t the ones blessed with institutional gravitas. Julia Brunette has a great piece in the National Jurist (I can only find it in the print edition) covering law school protests that avoids the usual media pitfall of allowing administrations leverage their credentials to spin the narrative.

In balancing the conversation with protesters and supportive faculty, what comes across is a powerful argument that protest is quintessential practical legal education. Any privileged elite can get an invitation to stand behind a microphone — a protest involves the non-powerful speaking up, making their case, persuading colleagues, and organizing individuals toward a common goal to be heard as a contrary viewpoint to the powerful.

Bringing us full circle to Judge Branch and the conservative embrace of free speech tropes to squelch liberal speech. It’s a curious brand of Originalist that would frame “free speech” as a demand that the rabble show King George a little more respect.

Those damn Framers and their cancel culture.

Trump-appointed judge in Yale clerk boycott condemns ‘cancel culture’ at Harvard event [Reuters]

Earlier: James Ho Cancel Cultures Yale Law FedSoc Because Other Students Are Mean To Yale Law FedSoc Students
Yale Law School Invites Boycotting Judges To Campus… Totally Not Cowardly Desperation At All!
Federal Judges All But Admit Yale Law School Boycott Was A Ruse And The School Fell For It Hard
Yale Law School Responds To ‘Free Speech’ Complaints By Cracking Down On Free Speech

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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