Law Professors Hate Free Speech and Embrace Control

“Philosophy would indeed be the easiest of studies, if we might arrive at truth by assuming that one of two accounts must be true, and prove the one by disproving the other; but in philosophy this is just what cannot be done.”  F.H. Bradley, Ethical Studies, 1927

“It will sometimes strike a scientific man that the philosophers have been less intent on finding out what the facts are, than on inquiring what belief is most in harmony with their system.”  C.S. Peirce, The Fixation of Belief

University law school professors are generally preoccupied philosophically with free speech, and have enjoined students to couple this concept with “truth” and “misinformation.” But why is speech their object?  Why not the effects of criminal violence, for example, or how courts can function more efficiently, or the economics of legal services?  Why is what people say considered more important than what they do?  But then, why is speech that actually incites violence often considered heroic by the progressive left such as from BLM or Hamas?

When so-called First Amendment scholars like University of Chicago Law’s Genevieve Lakier—“a proponent of strengthening institutions that can help citizens trust what is true”—state publicly that they’re a “First Amendment addict,” what she really means is that she’s an activist committed to forming dominant political ideology—and such a commitment requires control of language. True free speech and intellectual heterodoxy threaten progressive political philosophy. When competitive and conservative speech flourishes among students, it represents a renewal of American classical liberalism.  As Friedrich Hayek stated in The Constitution of Liberty, “If old truths are to retain their hold on men’s minds, they must be restated in the language and concepts of successive generations.”

In most of our law schools, the progressive left would like to filter such speech and concepts, as they directly challenge the socialist political construct that nourishes its ideology, behavior, and objectives. True free speech creates a certain social richness, and energy, that disturbs the socialist mind, and the modern law school is nothing, if not at its core, an institution that increasingly pursues ideological consolidation through the forces of law and the attempted control or guidance of speech and thought.^[1]

Lakier helped organize the “Lies and Law” program at Columbia University—another predominantly progressive institution—where conservative speech is considered ipso facto a “lie”—or at least subject to more suspicion and regulation.^[2]  Lakier, like nearly all her law school colleagues, is supposedly concerned about something called, “misinformation.”  It is very important in her world view that students not be misinformed—by competitive communication—and she and her like-minded university colleagues want to ensure that America’s college students are protected by more government rules.

Some, including a former US president, have been on a college tour promoting speech suppression for those ideas that do not comport with progressive ideology—calling conservative, or competitive thinking, “dangerous” and even a national security risk. Others, like NYU Law professor Rick Pildes, have written in major media about how political candidates with thoughts deemed too inconvenient or controversial should even be disallowed and removed from public view during election cycles in order to “moderate” political dialogue and provide public “safety.”

Lakier shares a similar ideological posture as her colleague, senior professor and Berkeley graduate, Tom Ginsburg, who heads up UChicago Law’s “Forum for Free Inquiry and Expression.” What is fascinating about these academic programs is that they assume it is noteworthy that a university formally states its promotion of diverse viewpoints. At a constructive and institutional level, however, no such thing exists—administrative bureaucracy has blossomed into a separate overgrowth in the university system, and it is almost exclusively a single ideological block.

Of course, free speech accuracy or misinformation is not thought to apply to the university academy’s central doctrinal pillar—academic freedom. In the world of law professors, all speech, all thoughts, all implications, and all effects—including those negative on the learning and maturation of students—is fair game if it emanates from the academy. There is no such thing as “misinformation,” and the accuracy of fact and data—if even considered—is subordinated to ideology.

But the law academy is also steeped in a culture of activism, as if activism were a duty of the law student and lawyer—which they confuse with advocacy.  This centers around the law school culture of social reform.  Reform is appealing because it appears to create an action agenda for the law professor, who otherwise is not by temperament or training prepared to act in a principal role. But the more insidious problem of legal activism—a conceit that extends to speech conduct—finds its emotional stability in such reform ambition, where it is thought of as a top-down positive law obligation that rightly imposes its judgements and preferences. The manifestation of this top-down cultural preference of the law school professor is the subsequent growth of rules, regulations, and institutions that are judged appropriate to operationalize through institutional authority.  This contributes to the runaway growth of the administrative state.^[3]

In this regard, the academy’s assertion of “free speech” has been twisted into a new form of speech control by the subtle manipulation of free choice theory—meaning that it promotes actual speech conformity by asserting personal and social danger from ideologically antagonistic expression, even while it holds out a belief in viewpoint diversity. But rather than promoting actual plurality, it seeks to delimit expression under the guises of social danger, social solidarity, and even biological safety—critical words can signal unsafe acts that may threaten new behavioral control concepts such as “social distancing” or the need to “be safe.”^[4]

What is it about academics that get them otherwise so excited about whether your speech is considered “accurate,” true, a lie, or “safe?”  How did speech ever become such a contested topic—and something that the political left in particular—is so concerned about, as far as its content and its effect in “symbolic interaction?”

I suggest four causes, all from legal concepts and cases that turn free thinking and free expression into political interests, and form the basis of organized government or state police power that is the law school remit—the concept of incitement of public violence (clear and present danger); the concept of treason; the concept of terror (reinforced by the Patriot Act) and the legal concepts of defamation, libel and evidence. These are now joined by the adapted tort and criminal law concepts of social harm and injury that can be claimed precisely from the purported effect of words, and thought. These are the same concepts now being used by progressives to try and set the political dialogue for 2024—proposing that voting in person is conceptually “unsafe.”

For example, one law professor went so far as to claim that a former president’s political free speech was an “admission” of guilt and can be used against him as evidence of criminal intent, or that even questioning how elections are conducted creates social danger and risk, leading to assertions of criminality—where questions become a  thought crime, and free speech, its cause.^[5]

One additional causal factor involves the separation of law from philosophy proper. By philosophy I mean an organized, systematic action of probity into fundamental questions of meaning and reality. It is—in most regards—a lost discipline in the modern university, and like law, has been ideologically hijacked. In its best forms, it sustains discomfort and inconvenience.  Immanuel Kant put it this way in the Critique of Reason: “The duty of philosophy was, rather, to remove the deception arising from misinterpretation, even at the cost of destroying the most highly extolled and cherished delusion.”^[6]

What is fascinating is how the essence of university education principles—which rest on inquiry, scientific rationalism, and statistical tests of significance across all the social, physical and biological sciences—are so easily suspended, or discarded, if ideological interests become sufficiently institutionalized, and of course, if they carry monetary rewards.  But this gets at the essence of the “free speech” obsession by law faculty—it really isn’t about speech, but about truth, but it really isn’t about truth either.  For the ideological law professor, truth is not the test of truth.  Political solidarity is.  When solidarity and consensus become the objective, then “truth” is easier to manipulate and rationalize, by delimiting the scope of considerations and consequences.^[7]

If social ideologues like Lakier were actually interested in free speech, she would simply state and share her beliefs and interests.  But that is not her object—the law academy, and university professors in general, are motivated not to engage in free speech, but to influence young adults into believing that “truth” depends on where it comes from—and where it comes from, depends in its believability on what the government, or perceived institutional authority, says is a trusted source. Institutions create truth, not people.  This serves the academy because it is above all else an institutional phenomenon that works through institutional culture and holds out institutional rewards (i.e. degrees) and punishments (i.e. failing grades, suspension, denial of acceptance, defunding or demotion). It is vital that it be seen as a “truth center.” And it is vital that students believe that it is, even when it isn’t.

The idea of actual free speech and free thinking from an open public forum, or “market” of ideas, terrifies the Left because it challenges the one thing that holds their world view together. As the theologian Martin Buber stated: illusion. And more than mere illusion, he explained this need as a desperate desire to be deceived, which works simultaneously to ensure that thought and speech conform to and support a permanent state of deception. Free speech must be recast as a speech danger to regulate the content of linguistic symbols necessary to perpetuate illusion.

The most direct way to achieve the political and behavioral goals of illusion and deception is through law, or rather, what has the appearance of law. The modern law school is where modern institutional deception is tacitly accepted as a necessary method of social engineering, where it is also cast as social justice. In politics, elections themselves are a threat because they rest fundamentally—or at least theoretically—on contention and challenge. In the political utopianism of the academic Left—and what it transmits to students—there are ideally no challenges, no actual arguments, no structural competition, no deviant thoughts, and no political rivals.

There is control.  That is what Lakier and her like-minded colleagues mean by “addicted to free speech.”

^[1] It is instructive to note that the law academy position toward speech and truth generally consists of passive trust, rather than active skepticism.  If free speech principles, or intellectual and behavioral heterodoxy, however, are to provide a learning function and a perception value, then they should operate in a critical manner.  Put another way, the whole purpose of “viewpoint diversity” and opinion and interpretive plurality, is based on active observation and criticism, not on passive acceptance.  Moreover, open speech and critical thought are not actions that result in stable meaning or resolution, but rather achieve their utility by instigation, instability, doubt, and probity.  The apparent intent of the law academy is to act precisely counter to free speech utility, by artificially inflating institutional authority so that speech and opinion flow from and through it, and are then received and accepted as ipso facto “true” and thereby settling questions of doubt, voracity, authority, accuracy or even relevance.  Part of this difficulty was also well-stated by Holmes: “Truth is the unanimous consent of mankind to a system of propositions.  It is an ideal and as such postulates itself as a thing to be attained, but like other ideals it is unattainable. Therefore the postulate must be conditioned—that it is a thing to be striven for on the tacit understanding that it will not be reached.”  Oliver Wendell Holmes, to Harold Laski, April 6, 1920

^[2] The University of Chicago Law professor wrote the initial white paper for the Columbia program, “Lies and the Law: Exploring how the law regulates or should regulate false and misleading speech.”

^[3] Some of this problem can be attributed to a lack of experience among academic practitioners.  This deficiency in experience affects or conditions their cognitive ordering and priorities, and shapes certain confirming biases as to what “truth” is.  “Many so-called truths are insignificant and trivial, but this overlooks the character of the judgement, which is one of reconstruction and does not attain truth until experience can proceed where it was inhibited.”  George H. Mead, A Pragmatic Theory of Truth, 1929, University of Chicago

^[4] Free speech disturbs any stable condition of society’s numerous independent variables.  Plurality however, tends to create a social force that resists political entropy, which is the desired state of progressive sociology.  That is, true free speech creates a certain social richness, and energy, that disturbs the socialist mind, and the modern law school is nothing if not at its core an institution that increasingly pursues social consolidation through the forces of law and the attempted control or guidance of speech and thought.

^[5] These factors are further energized and shaped in the modern law school by its general adoption of social science culture. It is important to appreciate however, that social science does not perfectly track “science” as regards the rational empirical method, or even the use of falsification, but accommodates a wide set of practices that can more resemble the humanities, and even if more traditional scientific methodology is embraced, it may not provide the level of intellectual fidelity that law schools may assume. As the law school is situated within a larger university, many of its concepts, methods and application standards are copied, in part to provide some perceived legitimacy to so-called legal research, and to the illusion of a JD degree as a “doctorate,” while providing a recognizable routine in how academic law looks in publications, through citations, and is made comparable to the larger production of academic output.  But this has a cost in the ways social science research can distort the legal domain: “Scientific certainty always has something Cartesian about it. It is the result of a critical method that seeks only to allow what cannot be doubted. This certainty, then, does not proceed from doubts and their being overcome, but is always anterior to any process of being doubted.”  Hans-Georg Gadamer, Truth and Method

^[6] An element of “cherished delusion” that still centrally animates the law academy is reflected by Yale Law professor Owen Fiss and his book “Pillars of Justice: Lawyers and the Liberal Tradition.”  He frames his thesis in terms of a heroic model of civil rights advocacy.  This is understandable given the economic events of the 1960s and 70s which still form such a large, if not dominant part of current academic  culture, but this has created in the modern law school a conceptual framework, or technical “enframement” (from the German “Gestell,” or the built system of thought channeling human actions) that has become in some ways the jurisprudence “black hole” that pulls economic and social issues into its absolute influence, but thereby diminishes intellectual independence, and actual legal thinking.

^[7] This obviously operates from a basis of opportunistic relativism.  “All the consequences of an idea do not have to be verified before we can call the idea “true.”  If we take into account the problematic context in which the idea arises, then we can see that only those consequences are relevant that bear upon the resolution of the difficulty.”  Sidney Hook

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