Differing Opinions: Free Speech in Law School

By Professor Maurice Dyson and Phil Mauriello, 3L

“Think for yourselves and let others enjoy the privilege to do so too.”

– Voltaire

Voltaire was an 18th-century French philosopher, writer, and poet. He is considered to be one of the world’s greatest Enlightenment writers of all time. Voltaire often used satire to speak out publicly against tyranny, bigotry, and cruelty at the hands of government and the Catholic Church and worked to advance socially progressive ideals in which people of all democratic nations eventually adopted, including the United States. The First Amendment, which was adopted in 1791 absolutely echoes the sentiment expressed in one of Voltaire’s most famous quotes, “I may disapprove of what you say, but will defend to the death your right to say it.” As a law student, I often wonder what Voltaire would have to say about the lack of social and political discourse that exists on our campus. I wonder, have law schools neglected to teach students the art of vigorous and healthy debate?

There is no doubt that our society has become unable to disagree without being disagreeable. Political role models in Washington who understand the importance of bi-partisanship and public discourse are all but extinct. But as we prepare as law students to go out into the world and make our marks in government, politics, the justice system and local communities, we must not only be able to recite laws but defend and abolish them when necessary. But where will we learn the skills if not here? How can we do as Voltaire said, “Judge of a man by his questions rather than by his answers,” if we do not know how to ask questions and then listen to those answers? A final quote by Voltaire is extremely timely in the wake of the election of arguably the most divisive and polarizing Presidents in our nation’s history since Abraham Lincoln in 1860, in which several southern states seceded forming the Confederate States of America. “Those who can make you believe absurdities can make you commit atrocities.” But if we are not allowing others to speak, how will we know what they believe? And more importantly, how will we change their minds? – Stacy James, 2L

The following is an exchange between TJSL Professor Dyson and TJSL student Philip Mauriello.

Original statement from Philip Mauriello

Dear TJSL Faculty,

I want to extend an invitation to all faculty to attend our event on April 13th with special guest speaker Ari Cohn from FIRE (Foundation for Individual Rights in Education) from 12:00 P.M. – 1:00 P.M. in Room 225. He will be speaking on the topic of free speech on campus, as well as the suppression of political viewpoints in the classroom. He will be giving students advice on their rights regarding free speech.

Thomas Jefferson has always prided itself on its diversity. However, one area of diversity that I believe is overlooked is the diversity of thought. I have been approached by several students who told me that they feel uncomfortable in class because they feel their viewpoints are unwelcome at Thomas Jefferson. They feel that their views are “wrong”. They feel marginalized because they do not agree with what the professor is saying regarding a political topic. Instead of speaking up, students quietly sit in class and wait for it to be over. And this isn’t just here at Thomas Jefferson. Similar stories have been passed along to me from Cal Western and USD as well. When I hear these stories, I can’t help but feel my heart drop.

In law school, you are taught to be advocates. Yet in our current political climate, certain students feel that they cannot even advocate for their own personal beliefs. In preparing future lawyers, this is a disservice not only to the legal community but also to the students themselves. I believe this event is important not only for students but for faculty as well. If Thomas Jefferson truly seeks diversity, then it’s important to recognize that diversity of thought is important as well.

I hope to see many of you there for what will be an informative and thought provoking event.

Thank you,
Phillip Mauriello

Response from Professor Dyson:

We can agree that all political viewpoints should be respected on campus.  We should protect that right as well with all due vigilance.  I can and do support a Federalist Society that may have contrary political views of others. They indeed represent the views of our students, faculty, and staff.  However vociferously some may oppose views that are contrary to our own, a democratic ideal of openness and inclusiveness should hold open that right to express one’s political viewpoint and our exercise of academic freedom should never impinge upon that right as faculty.  My view has been one is entitled to their own views, but not to their own facts.  The reality is what it is, no matter how inconvenient it may be to a platform of any political party.

No one group has a monopoly on truth or the moral high ground. Indeed truth can be found in views across the political spectrum and there are noteworthy criticisms that may be justified on either side of our polarized society.  However, to couch political discourse in the context of “diversity of thought” more broadly should be done with a healthy dose of care and skepticism. Surely, an enlightened institution of higher learning seeking to enrich, enhance and enlighten students and all in our academic community can recognize some “diversity of thought” is an invitation to appeal to the lesser of our angels, to the debased nature within our society which also cuts across the political gamut. When it does, we should all be uniform in our condemnation. No harassment of Trump supporters should ever be tolerated just as those who are Trump supporters should never harass those who think or are different than them. I strongly oppose the view of Milo Yiannopoulos, but I can’t stand for the violent response we saw at Berkeley committed by black bloc anarchists. That is not acceptable.  And indeed, for every student who has approached Philip who has expressed discomfort, or felt marginalized, I, like Philip, “can’t help but feel my heart drop” when I see the harassment of Jewish-Americans, Mexican-Americans, African-Americans and of course Asian Americans approach me here and for those suffering throughout the country.

In addition, the vitriolic language and thought of hate crimes, offensive epithets and intolerance can be seen everywhere: public students rallying holding Trump signs yelling “white power” in school hallways, Black dolls hanging from ropes in school bathrooms, Mexican students being shoved, spat upon and harassed, Jewish synagogues being vandalized, car windows and church walls defaced with epithets. Surely this must mean that there must not only be a civility limitation on “diversity of thought” but a consistent, constant condemnation of it when it crosses the line to be an affront to our basic humanity from both sides of the political spectrum. We affirm the Universal Declaration of Human Rights, the Convention on the Elimination of Racial Discrimination, and the First Amendment but not at the expense of the Fourteenth Amendment to the U.S. Constitution.  “Diversity of thought” in my view is a bit too imprecise, ambiguous and problematic for the reasons just noted.  Unless this kind of diverse thought invoking hatred and intolerance is what is meant by employing this rhetorical label (which in itself is an affront to diversity on our campus), we ought to stick to a more precise characterization of this debate: political tolerance or political diversity.

Response from Philip Mauriello:

I would first like to thank Professor Dyson for taking the time to engage in this important discussion. When writing my original email, I intended to get the attention of faculty members and to bring light to the issue. I was happy to see that it had achieved that effect.

Nevertheless, while I can state with certainty that Professor Dyson and I agree on many points, I would like to clarify the use of the term “diversity of thought.” While Professor Dyson states that diversity of thought “appeals to the lesser of our angels”, I believe such rationale is the nexus of the issue of this discussion. My belief is that we as a society have gone too extreme in one direction, and the only remedy is bold action in the other direction. To state that we all appreciate free speech and differing views is noble on its face, yet does little to address the underlying issue. While there are many forms of speech that are abhorrent and present little to no educational or cultural value, there are many forms of speech that are helpful and constructive to solving many of today’s problems. Yet they are suppressed out of fear that they overlap with the vitriol speech Professor Dyson refers to.

I fear that to immediately label any “diversity of thought” as potentially dangerous returns us to the same position we are currently in. We cannot bow to the uncertainty that “diversity of thought” may turn dangerous. Putting limitations on “diversity of thought” before we even engage in it starts the slippery slope that gets us back to our current state. I fear this does nobody any good except those who seek to use such rationale not as a shield but as a sword to strike down speech and thought they do not agree with.

Finally, I fear that by preventing any diversity of thought because it may “appeal to the lesser of our angels” is inherently dubious to students who are pursuing graduate level degrees. If we cannot be trusted to choose between constructive forums or those that are patently offensive and hateful, then what are we to be trusted with? Are we not learning complex legal issues day in and day out? Are we not building the logical skills needed to evaluate all sides of any labyrinthine issue? College students may be treated with such fastidiousness, but to assert that students pursuing such a prestigious degree as a Juris Doctorate cannot discern between constructive “diversity of thought” and hate speech worries me. While “diversity of thought” can be construed numerous ways, it does not change the fact that we are at a point in society where the only way to solve our issues are through cooperation. We will all be forced to confront issues that we are uncomfortable with, but without such bold confrontation, our issues will fester and grow like an infected wound.

Let’s not look back on this time and say we were unable to solve today’s issues for fear of speaking up.

Response from Professor Dyson:

Phil, I am sincerely appreciative of your commitment to school citizenship and for your contribution to this debate.  As lawyers and lawyers in training we must ensure that we are protecting rights to express varying political views, not to suppress or prevent speech.  “Diversity of thought” however, is simply too nebulous and could include hateful,  violence inciting  speech that itself is legally prohibited by the 1st Amendment and which also may  offend equality principles  protected by  the Fourteenth Amendment. Therefore, it is the Constitution, not individuals, that draws the final red line on speech.

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