Professor Scott Brewer weighs in on recent events at Harvard Law School.You can read another take by Professor Duncan Kennedy here.
This past Wednesday evening I attended the screening of the film “Bridge of Spies” that Dean Minow and the Program on Negotiation hosted here at HLS. I had known nothing of the main subject of the film, James B. Donovan, a 1940 HLS alum (played in the film by Tom Hanks) who had a distinguished career as a lawyer-statesman-negotiator. Donovan’s career came to mind as I listened to conversations among some of my colleagues about the controversial contest over student use of a WCC space that some students have been, as they put it, “Reclaiming” (actually, “claiming”?), while other students (one, Mr. Barlow, has been especially prominent) have been seeking to use it to speak by means of posters even as Reclaim has sought to deny him that speech.
The film made clear that Donovan was willing to champion robust advocacy, as a matter of principle, even in support of deeply unpopular causes, at personal cost and risk. As far as I can tell, the historical record of Donovan’s life seems to support the conclusion that the real-life Donovan really had and lived by these views. The Harvard Gazette summed it up this way:
How can you defend a foreigner who came to the United States with the likely intent of causing harm to Americans? For attorney James B. Donovan, a 1940 graduate of Harvard Law School, the real question at the height of the Cold War was: How can you not?
In representing accused Soviet spy Rudolf Abel in the late 1950s, Donovan ‘probably had the most unpopular client since John Adams defended the British troops in the Boston Massacre of 1770,’ as newscaster David Brinkley put it. Donovan was no fan of communism, but he felt it was his patriotic duty to give Abel a strong defense and thereby demonstrate the fairness and integrity of the U.S. legal system. ‘If the free world is not faithful to its own moral code,’ Donovan said, ‘there remains no society for which others may hunger.’ He refused to give up even when Abel was convicted in federal court in Brooklyn. Donovan not only argued down the spy’s sentence from death to 30 years, he appealed the conviction all the way to the Supreme Court, losing narrowly.
In conversations and published communications that I’ve examined, there seems to me to be a strong concern, nay, a fear, that, should the HLS administration act (as it has announced this past Friday it will act) to enforce norms of toleration, that is, use power, if necessary, to keep spaces open for differing and competing voices, HLS might receive bad press or bad social media. More specifically, I perceive a fear that, if the HLS administration insists that non-Reclaim students be allowed to publish speech (including posting posters that are not removed or defaced by other students) in the same speech zone that the Reclaim students have for a good while now been occupying with some degree of speech-repressing force, HLS will suffer significant reputational harm with segments of the “viewing” publics.
Some countries have censorship boards, in which citizens must submit texts that they wish to publish to an administrative apparatus that decides what speech is permitted to be heard. As I’ve understood it from posted descriptions, this seems to be the same process that the Reclaimants have sought to use with Mr. Barlow (and would presumably use with other students who wish to speak in the ways that Reclaimants do, including postering, in the same space). We should not fear adopting and standing by — up to and including enforcing rules in a duly procedural Ad Board tribunal — the principle that all students be allowed to speak in an area of HLS designated for student speech. All students should be permitted to speak there (whether it’s in WCC or some other designated student free-speech space), even if they have other avenues of speech as well — as is surely the case with the Harvard Law students engaged in this contest. More specifically, our deliberations on this matter should not be driven by the fear that such a stance might be unpopular with alums, admits, print and broadcast and social media.
As I learned of it last Wednesday night I was deeply impressed by Donovan’s principled view about representing unpopular causes. If we fear using power to enforce norms of toleration because it might be unpopular, we might well take counsel from Donovan’s example. I should add that I cannot tell how unpopular Mr. Barlow’s position is, since there has as far as I know been no reliable polling data about his specific views among HLS “citizens,” and indeed many students who might be sympathetic to Mr. Barlow’s position, or who have other positions contrary to those of the Reclaimants, may well be chilled from expressing themselves by virtue of the very fact that, as of late last week, HLS seems to have ceded to Reclaim so much speech-chilling power. A Catch-22 hovers here. It may well be (and I suspect the Reclaimants believe) that theirs is the unpopular position — a concern for racial justice in an atmosphere that has been very cogently described by one Reclaim sympathizer as “a dominant cultural and economic ideology at Harvard: corporate liberalism.” And if Reclaim members are brought before the Ad Board, surely a Donovan would feel it his duty to defend them. But so likewise would he feel it his duty to defend a Barlow or anyone else no matter how unpopular the defendants might be in their political climate. (Surely, we may be confident, he would also defend a Socrates, no matter how “short” his fellow citizens believed he “came.”) We may not be able to tell who has the Real Unpopular Cause (or who may claim the vaunted politically potent label — in our culture of complaint — of “victim” in need of protection and favor), but what we do know is that there are competing forces and interests that want their say, some of whom want their say to the exclusion of others’ say (perhaps feeling that those others already have too much “say” — the Who Has The Most Say calculus can be a delightfully rhetorically skillful casuistic ratiocinative process).
There are many ways to articulate the values that might underwrite Donovan’s position. I like Mill’s On Liberty, which argues a view of the value of having robust vigorous tolerant space for debate (a view that those great agonophilic portmanteau thinkers Nietzerson and Emsche could have appreciated). The academy should be a place where expressed views (the more vigorously expressed the better, for my taste) are allowed to be heard and to mix it up in contests, both within and beyond classrooms. I do not think of this as a position of “neutral liberal space” — a type of space I have a hard time imagining, since there are always some losers in such a space (such as those who would prefer a theocratic space). The kind of free-speech spaces that power can wisely create and maintain do favor one type of skill, one “lifestyle,” one set of intellectual virtues: the power of cogent, compelling argument. The Academy’s virtues are Logocratic, not theocratic. I have pursued this principle in my own teaching here at HLS, including last semester and this semester. I have repeatedly sought out guest or co-teaching appearances with colleagues who offer powerful articulations of positions on topics that matter to me a great deal, with which I disagree, sometimes profoundly. I do this because I know I learn a great deal from these competitive collegial exchanges, and I believe the students in these classes do as well.
If anything, our HLS debate space seems to be already too limiting, too willing to privilege and be worried about some views at the expense of others. I wonder what kind of response Reclaim supporters would think it appropriate for the HLS administration to take if faced with a White Supremacist, or Black Supremacist, or Taliban or ISIS student protest group that wanted to “occupy” the WCC lounge. Surely their response might be, “But our cause is the just cause, that’s why we deserve to control the speech space.” Of course, whenever there are competing claims of justice, the proponents of the view think that theirs is the just view — that is why it is their view. I have gotten the impression — from some very thoughtful colleagues who are deeply sympathetic to the Reclaim views and actions — that some Reclaim students insist that we listen to them and not be so quick to assume the familiar role of teachers of students who are in need of intellectual correction. When I hear of such demands, I wonder what these students would now tell us that we haven’t already heard, and also whether what they claim is not only some kind of right to be heard but also a right to be believed, to be persuasive. It is almost too obvious to state that being persuasive is not a right but a privilege that must be earned by cogently forceful arguments in an arena of intellectual contest.
We should let “the world” (admits, alums, and beyond) know that we take very seriously indeed the principle of not allowing some students to drown other students’ speech because they disagree and think they own, or should be allowed exclusively to possess, the speech-space. I am happy to associate myself with the principled stand, of the sort that I think analogous to Donovan’s, that spaces for student expression must be kept open to all students — “kept open” to the point of enforcing rules that insist on letting all students have their say: Barlow, Reclaim, and whatever others might want to voice in. Is that really a principle we should fear asserting? We need not go as far as another of the great agonophilic thinkers, our own Oliver Wendell Holmes, Jr., in proclaiming that “when men differ in taste as to the kind of world they want the only thing to do is to go to work killing,” nor that “[d]eep-seated preferences cannot be argued about . . . and therefore, when differences are sufficiently far reaching, we try to kill the other man rather than let him have his way, ” nor that we “don’t see that . . . reason stands any differently from my preference of champagne to ditch water.” The Academy should foster the skill, tool, weapon of reason and argument, and use power to do so. There is a vast and vital difference between suppressing speech and enforcing norms of toleration. Power can be used virtuously or viciously. Using administrative power to enforce a norm of toleration against speech suppression is a virtuous use. I would like to see HLS create and maintain tolerant spaces for cooperation and opposition, for collaborative and competitive deliberation, for assertion and denial, spaces that are fields and arenas for both plowshares and swords.
Professor of Law
Harvard Law School
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