Yale Law Dean Heather Gerken noted in a Time Magazine piece last summer that law schools had generally avoided the type of “ugly free-speech incidents” that had recently roiled various college campuses.
She attributed that lack of conflict to the training law schools provide and the emphasis the law places on understanding the position of one’s opponents.
But the campus free speech debate has arrived on the legal academy’s doorstep nonetheless. On March 6, student protesters at Lewis & Clark Law School disrupted a speech by conservative commentator Christina Hoff Sommers. And on March 29, students at the City University of New York School of Law held protest signs and heckled Josh Blackman, a professor at South Texas College of Law Houston, who had been invited by the campus chapter of the Federalist Society to talk about free speech.
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Blackman, who is right of center and has defended the legality of some of President Donald Trump’s actions, went public last week with his experience at the school, posting a video that showed him navigating a protestor-packed corridor and struggling to deliver his remarks over the interjections of students standing inches away. The signs called Blackman a white supremacist, oppressor, and racist, among other things. (The student protesters appear to have taken particular issue with Blackman’s support of Trump’s decision to rescind the Deferred Action of Childhood Arrivals program on the grounds that its creation was unlawful. Blackman said during his remarks that he supports the DREAM Act.) The protesters left the room after 10 minutes, but Blackman scrapped his prepared remarks and instead took questions from students.
We talked to Blackman on Tuesday to discuss his experience at CUNY, the future of free speech on law campuses, and how law schools should handle student protests. His answers have been edited for length and clarity.
You wrote on your blog that you had never been protested before. Do you think the climate around law student protests has changed? Or was this a byproduct of visiting CUNY, which has a reputation as being a very progressive campus?
I think the incident at CUNY is something of a canary in the coal mine. There is no doubt that the students at CUNY are outside the mainstream, in terms of law students nationwide, but the fact that it happened at a law school, not just at an undergraduate campus, is especially disquieting. We’ve seen these incidents at colleges, with 18-year-olds who don’t really know what they’re doing. But not from people who are a year or two from being members of the bar. That’s new. And that’s what surprised me the most when it happened.
CUNY’s Federalist Society warned you ahead of time that there might be a protest. What was your initial reaction when you heard that?
The initial reaction was one of shock. I’ve never done anything worthy of being protested before. Part of me didn’t really believe the initial warning. It wasn’t until about an hour beforehand that I learned this was actually going to happen—that students were going to protest and try to heckle my event.
The problem only arose when I entered the room, and the students basically surrounded me. They were standing, quite literally, over my shoulder—inches away.
How did that feel?
Looking back at it, I don’t know how I maintained my composure. It was very distracting. I absolutely lost my focus. I didn’t know what the heck was going on. I didn’t know the students were going to leave after eight or nine minutes. I thought they would be there for the whole hour. Even after they left, I worried that they might come back.
It absolutely disrupted what I wanted to do. I wasn’t able to give the speech I wanted. I didn’t have enough time to give it, or the energy to give it because I had to deal with all these other factors. These students were deliberately trying to interfere with my ability to exercise my constitutional rights.
Do you think the protesters succeeded in suppressing what you had to say?
To the causal observer, no; they failed because it looked like I handled the situation perfectly. But they actually did interfere with my ability to exercise my rights. Even if it was just for 10 minutes, they succeeded on that front. Only one person can talk at the same time. If I’m trying to talk, and they are shouting over me, I’m not speaking.
What should CUNY have done differently in this situation?
The administrator who gave the warning [to the protesters] waited several minutes to come in. She should have come in immediately and given a warning. And then when they continued heckling, they should have been removed from the room. This isn’t difficult.
Can you imagine if Justice [Ruth Bader] Ginsburg came on campus and a bunch of pro-life protesters came up to the front of the room with signs saying “Ruth Bader Ginsburg Is Enacting Genocide” and did that for 10 minutes? They’d have the cops on them. I can’t imagine the same reaction with a left-of-center speaker.
I’ve had no apology from CUNY. I’ve not heard a word from them.
What reaction have you gotten from other law professors about this incident?
I’ve been pleasantly surprised that the response has been overwhelmingly positive. Every professor who has contacted me has said that I did the right thing, that these students were behaving improperly. I’ve not heard anything from any CUNY professors or from the CUNY administration. Those law professors, I suspect, agree that their protests and heckling was reasonable.
When I say [the protest is] a canary in the coal mine, I don’t just mean the students. I think the failure of any significant outrage by law professors here is really troubling. There is a lot of silence from people who should be speaking out about this. The indignation hasn’t been there. There should be an [American Bar Association] or [Association of American Law Schools] investigation into this: that CUNY’s not supporting free speech.
What lesson should the legal academy take from this?
No one is immune. If you say, “Well, we simply won’t allow white supremacists to have a forum, like Ann Coulter or Milo Yiannopoulos.” OK, how do you define who is a white supremacist? If I’m a white supremacist, then [the phrase] doesn’t have any meaning any more. No one will be given free speech platforms.
I may have been the first to be attacked, but they will come for everyone eventually. If any time a person speaks ideas that are uncomfortable to others, the remedy is to shut them down, no one will be left to speak. The protesters were shaming students for attending. They were shaming students for going to a lecture. What kind of intellectual climate is this where students are afraid of walking into a lecture?
Will you think twice about accepting speaking invitations from now on?
I’m not going to change a damn thing. What those students want is for me to stop speaking, and they’re not going to succeed. I won’t let them. I’d gladly go back to CUNY if they’d have me. I want to actually engage with the protesters and have a meaningful discussion. Not just heckling.