First, some good news: The Harvard Law Record published a thorough report of the aftermath of this year’s Law School Parody. (“HLS Parody Draws Ire, Discussion at Town Hall Meeting,” The Record, March 23, 2006.) As a member of the Harvard Law School Association, I receive a complimentary subscription to the administration’s in-house propaganda rag, the Harvard Law Bulletin, rather than the more interesting and revealing Record. So I thank you for keeping alive at HLS an independent, student voice. Alumni need to learn what’s really going on at our notoriously censorious alma mater somehow. What’s more, no faculty member nor student has, at least yet, filed formal disciplinary charges against the parodists. I’m told, too, that the dean of the law school has refused to apologize for her appearance in the parody, an appearance routinely made by law school deans over the years. These are not insignificant victories for free speech at the school that educated Holmes and Brandeis.
Now, some bad news: It is remarkable that there is yet another imbroglio caused by a student-authored parody at Harvard Law School. Recall that more than a decade ago, the Law School faculty, under the leadership of then-Dean Robert Clark, adopted the still-in-place Harvard Law School Sexual Harassment Guidelines. These Guidelines censor speech that would be lawful if spoken in Harvard Square, but, alas, not in Harvard Yard or the Hark, and their enforcement has subjected the Law School to national ridicule and contempt in civil-liberties circles where free speech was and still is important.
The 1990s imbroglio, it will be recalled by many, was triggered by the annual Harvard Law Revue parody issue that contained a tasteless and cruel, but still protected by principles of academic freedom, parody of a posthumously published article by the late Northeastern Law School Prof. Mary Joe Frug, who had been brutally murdered. When the Administrative Board, acting upon a formal complaint filed by Prof. David Kennedy, failed to discipline the parodists on the ground that the Law School did not (then) have a formal rule outlawing such gender-based parodic offense, Dean Clark and the Faculty established such a censorship code. (For those interested, Professor Alan Charles Kors and I tell the tale in our 1998 book, The Shadow University: The Betrayal of Liberty on America’s Campuses.) Just a few years later, an incident of racially offensive speech triggered a proposal to enact a similar speech code to prohibit racially offensive speech, but that movement failed when it produced too much press coverage in the world outside Langdell’s vaulted and vaunted confines.
I do not expect the latest brouhaha surrounding the annual Law School Parody to result in yet another speech code at the Law School. It is by now obvious that the free world is looking too intently on the betrayal of academic freedom in so many departments and schools of so many universities throughout the country, including — if not especially — Harvard. After all, the university president was recently pushed out of office because he dared to puncture the protective patina currently shielding some intellectual areas from sharp appraisal at the university. But it is nonetheless very disturbing that a parody would result in what your report describes as a standing room only “town hall meeting called to discuss allegations of racism and sexism.”
It is one thing to see the comedic portrayal of hot-button issues such as race and gender be a cause for such a meeting. To be sure, there is nothing wrong with confronting allegedly “bad speech” with “good speech.” But it is dispiriting to see law students so reflexively oversensitive, not to mention unmindful of parody’s historical significance, that the Record could report that “all [present at the town meeting] seemed to agree that there is a line that should not be crossed.” Where parody is concerned, of course, there is no line at all, for parody is supposed to be biting and hard-hitting, as the Supreme Court made clear in its unanimous opinion in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). If the First Amendment absolutely protects the right of a magazine to parody a self-righteous evangelical minister as having had his first sexual experience in a drunken incestuous orgy in an out-house, one would think that Harvard Law students would have thick enough skin — and sufficient fidelity to free speech and academic freedom principles — to tolerate however the Law School’s annual Parody show might possibly depict them.
Harvey A. Silverglate ’67
Lawyer and writer