Will ABA Standard 208 Change Anything?

It’s a truism in law that a right without a remedy is worthless. It’s cool to say “you have a right to speak,” but if you’re precluded from speaking, whether because of cancellation, disruption or pressure of being shunned, it’s an empty right. The American Bar Association, flexing the one power that it oddly still possesses, accreditation of law schools, decided to take a stand for free speech in law schools, in ironic conflict with its prior stands against free speech in Model Rule 8(4)(g) for lawyers, by approving Standard 208.

A law school shall adopt, publish, and adhere to written policies that encourage and support the free expression of ideas. A law school’s free expression policies must:

(1) Protect the rights of faculty, students, and staff to communicate ideas that may be  controversial or unpopular, including through robust debate, demonstrations, or protests; and

(2) Proscribe disruptive conduct that hinders free expression by preventing or substantially interfering with the carrying out of law school functions or approved activities, such as classes, meetings, library services, interviews, ceremonies, and public events;

Sounds nice, and all the usual suspects are applauding the ABA House of Delegates’ bold move to support speech.

“Standard 208 is a desirable reaffirmation of free-speech principles,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law and a leading scholar of constitutional law. “It’s in accord with what almost all law schools already do. But especially in these difficult times, where so many free speech issues have arisen, it is desirable for the ABA and the law schools to make clear their commitment to freedom of speech.”

You might be confused as to why free speech, that right protected by the First Amendment already, requires double protection at law schools subject to the First Amendment. You might be even more confused as to why Dean Chemerinsky applauds it, even though “It’s in accord with what almost all law schools already do.” If they already do it, are they now supposed to do it twice? And if they already do it, why have “so many free speech issues” arisen? Or does Chemerinsky think that double secret free speech will be the magic key?

The Foundation For Individual Rights and Expression, FIRE, also supports Standard 208, but as reflected in Senior Program Officer Mary Griffin’s statement, FIRE sees what Chemerinsky does not.

FIRE is pleased to see the ABA take concrete steps to ensure the law schools it oversees prioritize free speech. The ABA’s new standard affirms law schools must protect students’ right to communicate ideas through “robust debate, demonstrations, or protests,” while also making clear schools must proscribe “disruptive conduct” that hinders that freedom of expression.

FIRE stands ready to assist law schools nationwide with drafting or updating their policies to protect student expression.

The most significant distinguishing factor of Standard 208 is that it comes out and states that disruptive conduct is not free speech. It’s long been argued by campus protesters that silencing and disrupting “bad” speakers is merely their free speech as against the free speech of the “bad” people. In other words, the right to disrupt and prevent an invited speaker from speaking was imbued with the same free speech protection as the speaker. While the speaker might have a right to stand up front and talk, so did they. And shout. And chant. And bang drums and hit cowbells. More cowbell.

ABA Standard 208 draws the missing line that law schools must have a policy against disrupting speakers, and that’s an important shift in the balance of campus free speech power. So, should the ABA and law schools pat themselves on the back for the glorious recognition of free speech? Well, there’s still one problem left out of Standard 208.

Just because a law school has a policy saying students are prohibited from disrupting speakers, it does not mean students won’t disrupt speakers. After all, what’s the law school going to do about it?

Nothing in Standard 208 provides that any particular action, sanction or punishment must follow should law students (and their more user-friendly prawfs) ignore the policy and disrupt anyway. Indeed, there has been no indication that students in general, and law students in particular, give a damn about school policy when it comes to shutting down speech with which they disagree. If anything, it’s considered a moral imperative, and who would let a silly thing like school policy get in the way of a moral imperative?

This is where FIRE’s generous offer comes into play, to not only provide the policy language prohibiting disruption of speech, but to provide the consequences that makes the prohibition matter. Maybe it’s a warning first time, followed by double secret probation. Maybe it’s a notation on their transcript followed by suspension. Maybe it’s expulsion after the third (or tenth) violation? But without some meaningful consequence, Standard 208 is just another sad  law school joke, good for a chuckle and little more.

But even with a policy in place, will it make a difference? Remember the Stanford Law debacle when DEI Dean Tirien Steinbach chose to attack invited speaker Judge Kyle Duncan and applaud the students who disrupted his presentation? It’s hard to blame the students when the dean takes their side. And what happens when 50, maybe 100, students engage in disruption? Expel them all? It’s hard to have a law school without students.

ABA Standard 208 is certainly a far better stand than the alternative, that students’ should be entitled to shut down any speaker with whom they disagree. But we remain a long way from changing the campus climate that lionizes the “deplatforming” of “bad” speakers and turns the censorious into law school heroes.

The problem isn’t just the lack of a policy, or a clear line prohibiting disruption, or even meaningful consequences for violating the policy. The problem is that law students believe that silencing speakers they deem “bad” is the righteous thing to do, consequences be damned. Until that changes, Standard 208 is just more words to be virtuously disobeyed in their fight for “morality.”

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