This commentary was originally featured in Forbes on April 27, 2018.
I write this report more in sorrow than anger, for I never thought I’d see the day when a law school dean would damn the First Amendment. This is the point we’ve come to on too many campuses today: Our academics teach suicide for the American experiment in democratic freedom.
On March 29, South Texas College of Law professor Josh Blackman came to CUNY Law School to give a speech at the invitation of its Federalist Society chapter. The topic that he had been invited to speak on was “The Importance of Free Speech on Campus.” According to reports, protesters “disrupted Josh Blackman for roughly eight minutes . . . shouting that ‘legal objectivity is a myth’ and calling him a ‘white supremacist.’” They also shouted, “F— the law!” and held up signs that screamed, “Rule of Law = White Supremacy” and “The First Amendment is Not a Licence [sic] to Dehumanize Marginalized People.”
Worse, in response to the shout-down, Mary Lu Bilek, dean of CUNY’s law school, defended the protesters with an interpretation of the First Amendment that would merit an F on a high school civics test. Readers of Orwell's 1984remember the ruling party's daily staging of collective gatherings known as "Two Minutes Hate." For Bilek, an eight-minute violation of your civil liberties turns out to be no violation at all.
Fortunately for the cause of freedom, the Supreme Court has ruled clearly that campus "shout-downs," also known as the "heckler’s veto," are unconstitutional. Through the heckler's veto, protesters prevent an invited speaker from being able to speak, and prevent the audience from being able to hear what it came for.
Unfortunately, and somewhat astoundingly, Dean Bilek appears unaware of the last half-century of Supreme Court doctrine on the First Amendment. Indeed, as far back as 1927, in Whitney v. California, Justice Louis Brandeis articulated the “counter-speech” principle: “[I]f there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied, is more speech, not enforced silence. Only an emergency can justify repression” (emphasis mine).
As the Foundation for Individual Rights in Education (FIRE) has written, “The increasing use of the heckler’s veto is distressing considering that the judiciary has been overruling the heckler’s veto since the Civil Rights Movement,” during which “black protesters were frequently arrested for peacefully occupying segregated areas because their acts unnerved and unsettled onlookers.” The U.S. Supreme Court addressed this in Brown v. Louisiana (1966), “ruling that the demonstrators’ First Amendment rights may not be curtailed merely because ‘their critics might react with disorder or violence.’”
Did Dean Bilek miss this point in her Constitutional Law class while attending Harvard? Is she aware that even Harvard’s own liberal icon, retired law professor, Alan Dershowitz, has warned us of the tyrannical consequences that would follow should we, like Bilek, validate the heckler’s veto? (I contacted Dean Bilek and asked for comment, but received no response.)
In an email to Inside Higher Ed, Bilek doubled down on civic illiteracy through attempting to buttress the position that eight minutes of violating the Constitution is okay: "For the first eight minutes of the 70-minute event, the protesting students voiced their disagreements," wrote Bilek. “The speaker engaged with them. The protesting students then filed out of the room, and the event proceeded to its conclusion without incident.” As such, it was a “reasonable exercise of protected free speech” that “did not violate any university policy.”
Tell that to Professor Blackman and the audience who came to hear him. As detailed in Campus Reform, Blackman responded to Bilek’s take thus: “I was not able to give the presentation I wanted—both in terms of duration and content—because of the hecklers,” said Blackman. “The Dean is simply incorrect when she said the protest was only ‘limited.’ To date, nobody from CUNY has contacted me."
If you are surprised to read that CUNY did not deign to reach out to Blackman to apologize for the poor treatment he received, you do not understand the depths of the hostility that some on the Academic Left hold toward the First Amendment’s protection of the right to debate and disagree.
Free debate threatens the intellectual conformity that the Left has so carefully cultivated on many campuses for several decades now. To champion “social justice,” they must cripple the free-speech rights of those who fail to march in politically correct lockstep. Our academic censors know well that the people—if allowed to witness and participate in robust, civil debate—can be counted on generally to choose the better policy as well as the candidate espousing the policy. I have written previously that this confidence in open debate constitutes our “core democratic faith.”
Our censorious campus leaders fear that, if students are allowed to hear competing views on various subjects, they will come to doubt the politically correct orthodoxy. In other words, in a free and fair debate, the case for freedom wins.
To prevent the case for freedom from being heard, administrators like Dean Bilek are forced to torture the meaning of settled Supreme Court doctrine—turning the prevention of free speech into an act of free speech. Such logic-challenged reasoning reminds one once again of the totalitarian regime described in 1984, which held that “freedom is slavery,” while “ignorance is strength.”
However, it would be wrong to focus all blame on one law school dean, despite Bilek’s unintentionally hilarious statement that “CUNY Law students are encouraged to develop their own perspectives on the law . . .” (emphasis mine).
It would be mistaken to focus simply on Bilek because, in the final count, she is but a small example of a big problem in legal education: This teacher of censorship was named one of the “’Most Influential People in Legal Education 2016’ nationwide by National Jurist, a leading news source for law students.”
In this light, Bilek is much more an echo than a new voice in legal education. Legal analysts have noted that our law schools, like many undergraduate institutions, have been steadily tracking left, jettisoning free speech in the process. We need to remember that Bilek is not simply some outlier. We need also to remember that, if the tyranny-inducing validation of the “heckler’s veto” spreads, there will come the day when we will wake up to realize that the First Amendment has indeed become what Justice Scalia feared—a “dead letter.”
But, by that time, it could be too late.