The ABA (American Bar Association) House of Delegates recently decided to make the adoption of free speech policies a requirement for law schools— a move that could potentially have wider implications than may first be apparent. By this new measure, for a law school to receive accreditation, it must put into writing policies designed to “protect the rights of faculty, students, and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” The full resolution has been perceived by some as being too vague to provide any real guidance to schools on where to draw the line when it comes to free speech versus hate speech.
While the intention of the resolution might be to promote open dialogue, critics argue that it may inadvertently lend credibility to the controversial “campus free speech crisis” narrative. This narrative aims to redefine the concept of “free speech” as being free from criticism for those in power, thereby shifting the onus from the speaker to the listener. One such manifestation can be seen in scenarios where authority figures push to silence or dismiss dissenting voices from the audience.
With recent incidents at Stanford University and Yale Law School, the debate on free speech on campus has heated up. In both cases, ‘disruptions’ of campus talks by students calling for open dialogue led to problems for faculty and potentially censorial reactions from school administrations, such as mandatory free speech training and threats to not hire clerks. The question of how these incidents are reported on by the media—for instance, by Reuters or Bloomberg Law News—also plays a role in further complicating the debate.
With the adoption of these free speech policies, the ABA risks inadvertently strengthening divisive voices and undermining the very freedoms they seek to protect. In the words of ABA President Mary Smith, members are urged to protect democracy. It remains to be seen if these policies will result in that protection, or advance a trend toward top-down control of speech in educational institutions.