Page 15 - Delaware Lawyer - Fall 2019

of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” Brandeis also counseled against surrender to fear and paranoia. “Fear of serious injury cannot alone justify suppression of free speech and assembly,” he asserted. “Men feared witches and burnt women.”
As a young free speech lawyer and litigator, I was once an unabashed and unapologetic zealot for the marketplace theory. I constantly proclaimed that the Chaplinsky and Beauharnais decisions were misguided and unsound, should be regarded as repudiated and overruled, and banished from our thinking. But to quote the great singer-songwriter Joni Mitchell, “I’ve looked at life from both sides now.” 17 Today I see the choice as agonizingly close. For me the Charlottesville events made the choice even more excruciating. I am sure I am not alone.
Coming to a Different Understanding of Free Speech
The order and morality theory and the marketplace theory have each exerted powerful gravitational pulls on Ameri- can politics, law and culture. Neither has ever entirely dominated. Neither has fully squelched the other. In First Amend- ment law, the marketplace theory has assumed ascendancy in the public arena. Racists now have the constitutional right to march and assemble in the streets and parks of Charlottesville, or the vast fo- rums of the internet. Yet constitutional law also recognizes the order and moral- ity theory as dominant in many societal settings deemed separate from the main arena. The First Amendment standards governing speech in public schools, or speech in the workplace, for example, par- take of order and morality principles. A racist screed may be permitted in a public park, or on an internet page, but may get a student suspended from school if direct- ed at another student in class or cost an employee a job if directed at a co-worker in the workplace.
The free speech debates that are so visible on American university campuses reflect the pulls and counter-pulls of the two competing theories. On the one hand we think of universities as the quintessen-
The free speech debates that are so visible on American university campuses reflect the pulls and counter-pulls of the two competing theories.
tial exemplars of forums in which we en- courage vigorous debate and free trade in ideas. Yet on the other hand, universities are also communities in which people live and work, with norms of professionalism, rational discourse and respect for human dignity. A. Bartlett Giamatti, before he was Commissioner of Baseball, was Presi- dent of Yale. Reflecting this duality, he described the campus as a “free and or- dered space.” 18
In the struggle to determine what as- pects of a modern campus should be on the “free” side and what aspects should be “ordered,” the distinction between public and private universities enters play. State campuses are bound by the First Amendment as they navigate free speech conflicts. Private universities are not. Yet most private universities have essentially “imported” modern First Amendment
doctrines, by contract or custom. The University of Delaware is bound by the First Amendment, but the Delaware Law School is not. Yet appropriately, we act as if we were.
These conundrums were vividly posed by the events in Charlottesville and on the campus of the University of Virginia. Les- lie Kendrick is the Vice Dean and a Pro- fessor of Law at the University of Virginia Law School and lives in Charlottesville. Reflecting on the events in her city and on her campus, particularly the August events that ended in death, she comes out in much the same place I do, which is to generally support the marketplace theory, but with skepticism and humility. “As a Jewish free speech lawyer living in Char- lottesville,” she has written, “I think about August 11 and 12 every day.” 19 Kendrick is skeptical of several of the central argu- ments associated with the marketplace theory. The Brandeis notion that suppres- sion of extremist speech actually strength- ens it, for example, is a proposition that cannot really be empirically proven or dis- proven. It is just as probable that allowing extremist speech to proliferate only helps it gather strength, as new members are re- cruited to join evil causes.20 Considering the recent plague of hate-motivated ter- rorist attacks by lone wolves radicalized by supremacist internet sites spouting white genocide conspiracy theories, it sure feels that way. Yet Kendrick ultimately comes down in favor of the modern protection of hate speech, as better than any plau- sible alternative. Preventing government from deciding what speech is worthy of protection and what speech is not poses
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