Emory Law School student government denies request for a free speech society, claiming that it might cause “harm”

January 13, 2022 • 9:15 am

The Foundation for Individual Rights in Education (FIRE) puts up a lot of news, but you can read it on their webpage. This piece, however, I found worth calling to your notice. Click on the screenshot to read:


This stunt is especially surprising because Emory University, in Atlanta, Georgia, has gotten a “green-light” rating from FIRE, which is FIRE’s highest rating for free expression within a university. But, as we know, fighting for freedom of expression is a never-ending task—especially these days when “harm” (meaning “offense taken”) is often judged to trump freedom of speech. And that’s apparently what happened at Emory:

ATLANTA, Jan. 10, 2022 — Emory University’s laudable free speech promises mean nothing to the Emory Law Student Bar Association, which denied recognition to a free-speech-focused student group because open discussion could cause “harm.”

Today, the Foundation for Individual Rights in Education called on Emory Law to promptly process the Emory Free Speech Forum’s application for a charter. FIRE first wrote to the school on Nov. 1 and received no response.

“The rejection of the Emory Free Speech Forum exemplifies the exact reason why this club must exist,” said Michael Reed-Price, president of EFSF. “Emory Law School’s Student Bar Association values free speech only so long as the ideas are in line with their viewpoint. The SBA need not agree with our ideas, they must merely tolerate our right to express them.”

Emory University is one of the few institutions in the country to earn a “green lightrating from FIRE for its speech-protective policies. Seeking to bolster this commitment to free speech, EFSF is a non-partisan student group “devoted to fostering critical discourse and open dialogue surrounding important issues in law and society.” In October, the group applied for a charter from the SBA, which would allow EFSF to seek university funding and use university resources.

EFSF satisfied all criteria for recognition. However, several SBA members objected to the speakers the group sought to host, the group’s decision to forgo moderators for its discussion-based events, and the group’s perceived similarity to the Federalist Society and the American Constitution Society.

The SBA ultimately rejected EFSF’s application, citing the “nature of this group” and speculating that EFSF’s discussions “will likely give rise to a precarious environment – one where the conversation might very easily devolve.” The SBA admitted it was “hesitant to issue a charter when there are no apparent safeguards in place to prevent potential and real harm that could result from these discussions[.]”

I wonder if other student organizations are required to specify safeguards against “potential and real harm”.  For, as you know, you can get “potential and real harm” these days from something as seemingly innocuous as a chess club.  If you read the second link above (“called on”), you’ll see a peeved FIRE writing to Emory’s President, General Counsel, and Dean asking them for an answer, and enclosing a nine-page letter that they sent on November 1 (pdf here).

You can read it for yourself, but I think Emory will have to cave, for, as FIRE points out, this student decision violates the University’s own free-expression policy:

Emory Law makes affirmative, robust commitments to its students’ freedom of expression. As a private institution, the law school is not required to make these commitments by virtue of the First Amendment. However, Emory Law has a legal and moral duty to adhere to the promises it makes.

Emory Law incorporates Emory University’s “Respect for Open Expression Policy.” That policy affirms “an environment where the open expression of ideas and open, vigorous debate and speech are valued, promoted, and encouraged,” including “these freedoms of thought, inquiry, speech, and assembly.” The policy explicitly notes that the university “respects the Constitutional rights of free speech and assembly.” While the policy recognizes that “[c]ivility and mutual respect are important values,” and calls upon Emory’s constituents to consider these values, it makes clear that these values “do not limit the rights protected by this Policy.”

Further, the Emory Law Student Handbook recognizes “that the educational process of our institution requires diverse forms of open expression – including freedom of thought, inquiry, speech, activism, and assembly,” and “affirms the rights of members of the community to assemble, demonstrate peaceably, respectfully express views on controversial social and political issues and engage in any other activities that are protected by the University Respect for Open Expression Policy.” This policy notably applies to students, and student groups specifically, providing that: “The University shall not deny recognition to an organization because of disagreement with its mission or the viewpoints that it represents.” Likewise, the policy states that “[e]xpression that communicates a viewpoint, regardless of form, is protected as long as it does not violate the guidelines of this Policy. This includes protest, dissent, and any other communicative activity, whether or not it occurs in the context of a Meeting or Event.”

This policy notably applies to students, and student groups specifically, providing that: “The University shall not deny recognition to an organization because of disagreement with its mission or the viewpoints that it represents.”19 Likewise, the policy states that “[e]xpression that communicates a viewpoint, regardless of form, is protected as long as it does not violate the guidelines of this Policy. This includes protest, dissent, and any other communicative activity, whether or not it occurs in the context of a Meeting or Event.”

Emory is a private university, and doesn’t have to abide by the First Amendment. However, once it guarantees certain rights to its students, abrogating those rights is the violation of a contract. I’m confident that the Emory Free Speech Forum will prevail.

I think that Coyne’s Mandate of having every entering university student take a brief course on freedom of speech, must also now have a subsection, specifying that offense, or “harm” is NOT a reason for limiting speech.

16 thoughts on “Emory Law School student government denies request for a free speech society, claiming that it might cause “harm”

  1. The Chronicle of Higher Education has, in my view, done a good job on presenting both sides of this case. One piece (https://www.chronicle.com/article/scandalous-suppression-at-a-law-review) reflects the position of FIRE, while the second (https://www.chronicle.com/article/no-this-isnt-about-academic-freedom) argues that the paper was rejected as submitted (with the author given the opportunity to revise) simply because it did not meet academic standards for publication. Having a) not read the paper and b) not being familiar with law journal publication norms, I won’t make a judgement. However, over a thirty year research career, I’ve had many papers rejected as originally submitted, and usually for good reasons. If this is the case here, then free speech is not the issue but maintenance of educational standard is. Again, I’m not taking sides – let’s see how this plays out.

    1. I think that’s a separate issue– though both involve academic freedom and Emory law school students. Brian Leiter comments here on the issue you bring up; it is mostly a quotation from the CHE piece by Andrew Koppelman, which, I gather, Leiter is sympathetic to.

      GCM

    2. There is a piece here about this Emory Law Review issue (which, as above, is distinct from the main post). There’s also a link to a pdf of the paper itself at the bottom of that article.

      Overall, I don’t think that they rejected it on quality grounds, they clearly rejected it on grounds that it questions woke assumptions, specifically the idea that the only explanation for non-equal group outcomes is “systemic racism”.

  2. The Emory SBA had better start lobbying for “bumpers” laws that will prevent Emory students from be exposed to anything offends them, once they leave university. /sarcasm

  3. … fighting for freedom of expression is a never-ending task …

    ‘Twas ever thus, a battle without surcease.

  4. It’s difficult not to paraphrase Ayn Rand when these kinds of matters arise, founded on the notion of equating speech with harm: Those who claim that there is no difference between speech and violence (or “harm”) ought to learn the difference on their own hides.

    I mean, what do they mean by “precarious environment”? Are they planning on holding discussions in a poorly maintained spaceship? And are the discussions going to “devolve” into australopithecine interactions? I don’t grasp what they are honestly afraid of other than inconvenience and whining.

  5. What if we had to do a free speech training in the same way as we have to do a diversity training, and anti-phishing training, etc…

  6. This is a law school. Holding adversarial discussions that may result in ‘potential and real harm’ is the job they’re training to do.

    Or are we training a whole generation of lawyers who won’t enter a courtroom if there is a possibility they’ll hear disagreeing opinions?

    …and the group’s perceived similarity to the Federalist Society and the American Constitution Society.

    Is there money being given out to these groups? If not, I don’t see the issue if different students want to set up essentially the same sort of club. Let the People’s Front of Judea and the Judean People’s Front both flourish.

    I guess there’s a possible risk of “resource capture” if the school has a limited set of resources (funds, room assignments, etc.) that they divide between clubs, and the school thinks some group of students is intentionally setting up repeat versions of the same club in order to get a bigger share of those. But that’s pretty far fetched. I’d say it’s on the school to provide evidence of that, if that’s the argument they’re making.

  7. SBA saying the groujp “will likely give rise to a precarious environment – one where the conversation might very easily devolve.”

    I recently watched the excellent HBO series Chernobyl again, and this quote vividly reminded me of the KGB Minister and other government functionaries’ reasons for containing and outright lying about information. It could cause “panic”; it could make them look bad; it could reveal truths they didn’t feel the public was ready for, that truth could spread; it was in the “people’s” best interest! They were protecting the people from themselves.

    They sound like dictators, but also totalitarians who think they know what’s best for everyone and should make decisions for all the lowly unwashed masses.

  8. I know I should be accustomed to stories of this type, but I’m just not. I can’t fathom the mind that thinks suppressing expression is the way to a better society.

  9. If the students really think the Free Speech Society will advocate poor positions badly argued, they should be champing on the bit for an opportunity to shred them apart. These are law students. They may end up where they may, but my guess is few of the most passionate go in hoping to spend all their time pouring endlessly over dry documents in probate to settle minor disputes. They’re good at debate! And a “free speech society” is going to be a sitting duck — for how could they turn anyone away? And their cause is just and true! Watch Conservatives Get Pwned.

    … “hesitant to issue a charter when there are no apparent safeguards in place to prevent potential and real harm that could result from these discussions[.]”

    Unless they’re concerned there are no safety rails or fire exits, they’re out of line.

  10. I guess I am profoundly ignorant about the power of popinjay student organizations. I don’t see that the student bar association (or any university student organization) should have any power to approve or reject this sort of thing. (Unless university administration delegates that power because it is one less headache to deal with.) I guess it is a private university thang. Is every law student required to join the vaunted student bar association?

  11. Yeah there is no chance that this impacts “academic freedom” Georgia.
    But guess what would? A proposed bill against CRT in the state legislature and supported by the the governor. That is, according to Lisa Morgan, chair of Georgia Association of Educators.
    “Students have a right to discuss difficult topics and teachers are trained to guide them, Morgan said. She worries that lawmakers want to discourage that.”
    Hypocrisy, thy name is wokeness.
    https://samsung.tribunecontentagency.com/2022/01/14/kemp-and-georgia-lawmakers-wade-into-school-culture-war-issues/

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