Misrule of Law

“Shut up,” they explained. “Social justice” is a euphemism for a rigidly-enforced identity politics agenda, which brooks no dissent.

Fifty years after launching the free speech movement at UC Berkeley in the 1960s, the Left seeks to disguise its stunning reversal of position—now opposing free speech on college campuses–through Orwellian semantics. In higher education, progressives currently assert, students must be shielded from exposure to certain ideas in order to promote “inclusion” and “diversity,” and to protect the vulnerable psyches of “marginalized” or “oppressed” students from “hate speech.” The switch from advocating robust discourse to banning it altogether conveniently follows a shift of power in academia.

Saul Alinsky taught that “ethical standards must be elastic to stretch with the times.” Higher education is now “woke.” Once leftists achieved hegemony in academia—among students, faculty, and administrators—activists predictably exert their power to ban speech (and speakers) they deem “offensive,” in the guise of protecting vulnerable students from being “injured” by objectionable utterances. Their real goal is to promote identity politics, and they have discovered that banishing dissenting opinions requires far less effort than winning arguments.

This nefarious tactic—cloaking censorship in the mantle of benevolent paternalism–is often used to justify campus “speech codes,” prohibitively-high security fees for controversial outside speakers, and policies prohibiting “harassment” of students. Censorship also occurs when campus administrators allow agitators to disrupt speakers and effectively silence them using the “heckler’s veto.”  Although the First Amendment protects most forms of non-defamatory speech, regardless of its content or the identity of the speaker, the true objective of the Left’s authoritarian tactics is sometimes obscured when the speaker in question is an outrageous ideologue (such as white supremacist Richard Spencer), flamboyant controversialist (Ann Coulter), or self-promoting provocateur (Milo Yiannopoulos)—all of whom have been muzzled by disruptive (and sometimes violent) campus protests.

Observers have been less sympathetic when such tactics have been employed against serious scholars such as social scientist Charles Murray and Manhattan Institute fellow Heather Mac Donald—yet the noisy protests persist.  Recently, however, would-be brown-shirts let their mask slip when they disrupted and attempted to shout down a speaker at the City University of New York School of Law, a self-styled public interest law school committed to “social justice.” The speaker, who had been invited by CUNY Law’s Federalist Society chapter, was South Texas College of Law professor Josh Blackman. His topic was hardly controversial—not transgender rights, same-sex marriage, affirmative action, immigration reform, police misconduct, or a similar hot-button issue. Incredibly, Blackman was effectively preventing from delivering a basic overview on the “Importance of Free Speech on Campus,” a talk he had delivered without incident at many other law schools.

The tech-savvy Blackman managed to capture most of the protest on video, and with many photos (available here).  The incident was widely reported on the blogosphere (such as here and here), and the protesters have generally been ridiculed for their puerile and intolerant behavior. But the episode is deeply disturbing, for several reasons.

First, the audience was not comprised of undergraduates, a cohort that includes many teenagers recently out of high school. This was a lecture at a law school, to adults who graduated from college and went to the trouble and expense of seeking a legal education—the goal of which, in the words of the fictional Professor Kingsfield (from the 1973 movie The Paper Chase), is to transform incoming students’ “skulls full of mush” into disciplined minds “thinking like a lawyer.” Yet the numerous signs waved by the protesters contained such slogans as “Rule of Law = White Supremacy” and “The First Amendment is Not a Licence [sic] to Dehumanize Marginalized People.” Students shouted “Legal objectivity is a myth” and “F*ck the law.” CUNY Law’s National Lawyers Guild chapter tweeted that “free speech” activists are “not welcome at our PUBLIC INTEREST school.” All this at a law school that charges over $15,000/year in tuition and fees to attend! Is this the face of “social justice”?

Second, Blackman is the antithesis of a lightning rod or demagogue. Blackman is a prolific legal scholar, writing mainly in the area of constitutional law. Although right-of-center, he is more libertarian than conservative. He signed the Originalists Against Trump statement prior to the 2016 election, is an adjunct scholar at the Cato Institute, and has co-authored books and articles with Georgetown law professor Randy Barnett, a noted libertarian. Unlike, say, Ben Shapiro, he is not deliberately confrontational. Blackman is mild-mannered, soft-spoken, and unfailingly polite. This year, the Federalist Society gave him the Joseph Story Award, an honor bestowed on a law professor under the age of 40 who has demonstrated excellence “and who has made a significant public impact in a manner that advances the rule of law in a free society.”

Finally, the Left reveals its utter hypocrisy and intellectual bankruptcy when the importance of the First Amendment is itself deemed to be “hate speech,” “racist,” “threatening,” and evidence of “oppression.” These absurd statements, and many others, were on display at Blackman’s March 29 presentation at CUNY Law. The rationale for the students’ protest was utterly incoherent—even irrational. Plotting to block a libertarian law professor from discussing the importance of the First Amendment to law students at a law school is antithetical to a free society. Whatever the professed motivation, such actions are despicable and indefensible, and smack of tyranny. The CUNY Law students’ mob behavior represents a betrayal of the free speech movement begun in Berkeley a half-century ago.

A depressingly small number of honest liberals, such as Berkeley law school Dean Erwin Chemerinsky, continue to defend freedom speech on campus, abhor the heckler’s veto, and correctly insist that there is no “hate speech” exception to the First Amendment. The administrators at CUNY Law shamefully took no action to prevent the disruptive protest, claiming later that a disruptive mob shouting down an invited speaker “did not violate any university policy.”

CUNY Law Dean Mary Lu Bilek risibly stated that “CUNY Law students are encouraged to develop their own perspectives on the law in order to be prepared to confront our most difficult legal and social issues as lawyers promoting the values of fairness, justice, and equality.” In other words, CUNY Law sanctions mob rule and the suppression of disfavored opinions. CUNY Law should provide a copy of Chemerinsky’s recent book, Free Speech on Campus, to the clueless SJW activists who embarrassed themselves and their school by exhibiting such thuggish intolerance toward Josh Blackman, and Dean Bilek should read it herself.

What this incident revealed is that behind the mask of social justice is the face of censorship and repression.

A slightly abridged version of this article appeared in City Journal.

The City Journal piece was adapted in the New York Post.