A Note from the Dean
Dear Alumni and Friends:
A vibrant democracy and a dynamic university depend upon freedom of expression. Without the First Amendment’s guarantees of freedom of speech, the press, and more, it’s hard to imagine how the rule of law could take root or how the free exchange of ideas could blossom.
As a top law school within one of the world’s leading universities, it makes sense that we take a leading role both protecting freedom of expression and enriching the broader conversation about the importance of free speech on campus and beyond. This issue of Cornell Law Forum magazine explores how Cornell Law School is at the vanguard of discussing, debating, and protecting freedom of expression.
I’m pleased to report that for the first time in our sixty years of legal clinics, Cornell Law students will now be able to participate in a First Amendment Clinic. As our cover story (p. 4) explains, students in the new clinic will litigate actual cases involving free speech and freedom of the press. The clinic will also conduct research and sponsor free-speech related programming for the campus community and beyond.
Made possible by a generous grant from the Stanton Foundation and a major gift from Ambassador William vanden Heuvel ’52, the First Amendment Clinic will launch this fall with a star-studded lineup of practitioners and scholars. Alumnus Mark Jackson ’85, one of the nation’s preeminent free- press attorneys, is the executive director. And guiding the clinic’s work will be a steering committee of faculty members Michael Dorf, Nelson Tebbe, and Steven Shiffrin—all leading experts in their respective fields. I’m thrilled to be adding this new clinic to our array of experiential offerings.
The Law School is also helping the wider University community to explore the issue of free speech on campus (see article on p. 8). In partnership with Cornell University president Martha E. Pollack, this past year, the Law School sponsored the Free Speech Presidential Speaker Series, which brought renowned legal scholars to Cornell for campus-wide discussions about freedom of speech.
In the fall, we welcomed Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, as the inaugural speaker in the series. One of the nation’s most knowledgeable and articulate legal experts on the First Amendment, Chemerinsky offered a passionate defense of a robust conception of freedom of speech on campus for both public and private schools.
Then, in April, the Law School hosted a debate on hate speech prohibitions between Nadine Strossen, the former president of the ACLU, now a professor at New York Law School, and Jeremy Waldron, a professor at New York University Law School. The ensuing discussion about the best ways to remedy hate speech, moderated by Professor Sherry Colb, was thoughtful and illuminating.
For the Faculty Essays portion of this issue (see page 16), we turn to two of our own experts for their views on contentious free speech issues. In “Is a Wedding Cake Speech?” Nelson Tebbe skillfully explains the freedom of expression issues at stake in Craig v. Masterpiece Cakeshop, Inc., on which the Supreme Court will soon issue an opinion. And in “Disaggregating Campus Speech,” Michael Dorf argues that free speech claims on campus depend greatly on the context, so that sometimes such speech requires extra protections, other times weaker, and sometimes it makes no difference. The robust debate over speech on campuses is emblematic of the kinds of institutions and communities that universities are. Where else in our society do people from so many different backgrounds and with so many different points of view come together and live together and engage with one another? Universities stand apart for their embrace of engagement across all kinds of differences. And of course when that happens, we’re going to have disagreements about the boundaries of appropriate speech.
How do we provide a supportive educational environment for students from different backgrounds, and at the same time, allow for the expression of different points of view? How do we deal with speech that we find hateful or even frightening? What are the rights of those who want to protest someone else’s speech? I’m pleased to report that the Law School is playing a leading role in seeking answers to these important questions.
Eduardo M. Peñalver
Allan R. Tessler Dean and Professor of Law
Discussing, Debating, and Protecting Freedom of Expression
Is the First Amendment, that bedrock of our democracy, starting to show cracks?
Events of the past year—including bitter free-speech debates at college campuses and the president’s regular condemnations of the news media—have legal scholars and ordinary Americans worried that freedom of speech and freedom of the press are under threat. A Knight Foundation report released in March found that only 60 percent of college students view freedom of the press as secure, down from 81 percent since a 2016 survey.
With concerns such as these in mind, Cornell Law School is launching a new First Amendment Clinic this fall. The clinic, which will be the Law School’s sixteenth clinical program, will enable students to work on real cases involving free speech and freedom of the press.
“The critical role that lawyers play in defending and protecting a free and independent press has perhaps never been more important than at this moment in an increasingly divided America,” says Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law.
Led by nationally renowned experts in First Amendment and constitutional law and theory and partially funded with a grant from the Stanton Foundation, the clinic will litigate and support cases that further the cause of free speech and aid the news-gathering process. In addition, the clinic will conduct research, policy analysis, and advocacy, as well as sponsor free-speech-related programming aimed at the wider campus community.
The executive director of the new clinic is Mark Jackson ’85, former Dow Jones general counsel and one of the nation’s preeminent attorneys specializing in freedom of the press. The day-to-day supervisor of the students and manager of ongoing cases is Cortelyou Kenney, who was hired in late April as the Stanton First Amendment Fellow.
“As a lawyer who has spent his entire career representing journalists and news organizations,” says Jackson, “I have seen firsthand the critical role lawyers can play in defending and protecting a free and independent press—in all media—and in aiding the critical news-gathering function.”
The mission of the clinic, according to Jackson, will be to protect the full gamut of journalists and media organizations. “The definition of a journalist and the definition of what a news outlet is have changed over the years,” he says, “so that a blogger engaged in journalistic activity deserves the same kind of protections as others.”
It was this shifting notion of what it means to be a journalist and a Moot Court case about free speech that got David Katz ’17 thinking about the need for a First Amendment Clinic while he was a 3L student.
“The lines that separate a journalist from a layperson have become blurry,” says Katz, who was deeply involved with the Capital Punishment Clinic during his three years and took Constitutional Law with Professor Tebbe. “We have well-known journalists tweeting about their personal lives and amateur bloggers covering serious local issues, such as police brutality, in their free time. One big difference between the two is that the latter often lacks the legal resources to protect their free speech rights from government censorship.”
With these concerns on his mind, Katz mentioned the idea of starting a First Amendment Clinic to Dean Peñalver during a casual hallway conversation. Then, over the next few months, he said, it kept coming up in conversation.
“Part of me thought he was just being polite,” says Katz. “However, one day he told me that the clinic was actually happening, and I was stunned. One of the great things about Dean Peñalver is that he takes students’ ideas very seriously.”
One of Peñalver’s first steps was to seek help from Mark Jackson, who had recently retired from Dow Jones. Jackson, in turn, “took the idea and ran with it,” says the dean. The pair worked together to create a steering committee composed of faculty members who are also leading experts in the First Amendment and constitutional law: Michael Dorf, Robert S. Stevens Professor of Law; Nelson Tebbe, Professor of Law; and Steven Shiffrin, Charles Frank Reavis Sr. Professor of Law, Emeritus. The steering committee members will oversee the work of the clinic and will also teach classes pertinent to the clinic’s work.
The committee members and Jackson underscore that the clinic won’t just be focused on aiding the news-gathering process and securing access to information. A big part of its work will be defending journalists or media outlets. This could mean defending them against efforts to obtain their sources. Or it could be defending them against lawsuits that are intended to punish, such as defamation cases.
Joining a Nascent Network
Jackson explains that the clinic will “think nationally, act locally.” On the local level it will give particular emphasis to cases and clients operating in upstate New York, western Pennsylvania, and eastern Ohio. On the national level, the clinic will be part of a consortium of other clinics and nonprofits that is being formed under the auspices of the Reporters Committee for Freedom of the Press. The consortium, which will include other new clinics at Vanderbilt, Duke, and Arizona law schools, will act as a clearinghouse for journalists. Jackson is on the steering committee of the yet-to-be-named network.
“A lot of free speech efforts are located on either coast of the country, representing larger media enterprises. The clinic is only going to be useful if it doesn’t duplicate other efforts and if it provides free legal services to media entities or individuals in our region that can’t afford it.”
Although current events are clearly spurring the launch of First Amendment clinics nationwide, Jackson is quick to point out that there has been a long-term need for such a program at the Law School.
“It’s not just because of Trump that the First Amendment Clinic is useful or needed. These type of clinics are always needed and they’re always a good idea,” says Jackson. “The value of a free press and free speech is always worth defending and fighting for and has always been a challenge in this country regardless of which party or which people were in power. In fact, Obama was very challenged in a First Amendment sort of way. He was not a great friend of the press.”
The new clinic is partially funded by a five-year seed grant from the Stanton Foundation, which will cover about half the cost of the clinic. In particular, the grant enabled the clinic to hire a Stanton First Amendment Fellow, Cortelyou Kenney, who is responsible for monitoring ongoing cases and ensuring that the work is done in a timely and professional manner.
“Many thanks to the Stanton Foundation for making this dream a reality,” says John Blume, director of Clinical, Advocacy, and Skills Programs at the Law School. “The new First Amendment Clinic is going to be a timely addition to our already vibrant array of live-client clinical and practicum courses. We are happy that we are going to have the opportunity to promote free speech and freedom of the press in upstate New York and the surrounding region.”
The Stanton Foundation was founded in 2009 to continue the philanthropic work of broadcasting pioneer Frank Stanton. The president of CBS from 1946 to 1971, Stanton was a passionate advocate for free speech.
The new clinic is also being funded in part by a gift from Ambassador William vanden Heuvel ’52, former deputy U.S. permanent representative to the United Nations, and U.S. permanent representative to the European office of the United Nations.
“The First Amendment is the guarantor of our democracy,” says vanden Heuvel. “To have young lawyers trained in a practical environment to be guardians of freedom of speech and expression as we approach a new era of challenge is crucial. In establishing this clinic, Cornell Law School reaffirms its leadership in protecting the rule of law and constitutional democracy.”
In the months since the new clinic was announced in December 2017, Jackson has been reaching out to editors and publishers at news outlets outside of the New York metropolitan area to ask what needs they may have and how the clinic could be helpful.
“I’m trying to establish those relationships so they know we are someone to call if they need us,” says Jackson. “I also suggest they think about projects, investigative and otherwise, that we could work on in conjunction with them.”
At this point, it’s unclear exactly how many students will be able to participate in the clinic because it depends on the level of funding available. Dean Peñalver says the school is looking to its donors and alumni network to raise more money. “The success of this new clinic will depend upon the entire Law School community,” he notes.
Katz predicts that Tebbe and Dorf, who are “both very popular professors,” are going to “inspire students to participate in the new clinic and practice constitutional law.”
For his part, Katz wishes the clinic had been available when
he was a 1L. “I would have done anything I could have to be
involved with it,” he says. “Being involved in the clinic world was one of the most rewarding parts of being at Cornell.”
The Hughes Hall Connection
Call it karma or coincidence, but when the Law School’s new First Amendment Clinic opens this fall, it will be housed in the building named for Chief Justice Charles Evans Hughes, who wrote some of the Supreme Court’s most important opinions on freedom of speech. Hughes, a professor at the Law School early in his career, surely would be proud to know that students in the new clinic will be studying his landmark cases as they litigate real cases of their own involving free speech and freedom of the press.
For example, Hughes wrote the majority opinion in Near v. Minnesota, in which the Court found that prior restraints on publication violate freedom of the press under the First Amendment. It was later a key precedent in New York Times Co. v. United States (1971), in which the court ruled against the Nixon administration’s attempt to enjoin publication of the Pentagon Papers. That case was the subject of the recent, critically acclaimed movie The Post, starring Tom Hanks and Meryl Streep.
Introducing the Stanton First Amendment Fellow
Cortelyou Kenney is a rising star in the area of First Amendment impact litigation. A proactive and passionate advocate, Kenney has devoted her legal career and education to public service and freedom of expression. And this summer, she will leave her posts at Yale Law School to take the helm of Cornell Law School’s new First Amendment Clinic. As the very first Stanton First Amendment Fellow, she will directly supervise clinic students and develop and manage ongoing cases.
“It’s going to be a challenge for sure, but it’s exciting,” says Kenney. “I think getting a new project off the ground presents enormous opportunities to really shape something impactful that can help underserved populations . . . by meeting needs that are not presently being met by existing clinics.”
She has already begun working with clinic executive director Mark Jackson ’85 and the steering committee to develop the initial docket of cases.
“I like cultivating cases; that’s the kind of lawyer I am,” says Kenney. “Where I go and find a client who can partner with me to do a path-making lawsuit to fix a particular problem in the world.”
Kenney is currently the supervising attorney at the Media Freedom and Information Access Clinic and staff attorney at the Collaboration for Research Integrity and Transparency (CRIT), both at Yale Law School. In these roles, she oversees open science cases focused on obtaining access to public health data. At CRIT, Kenney works to liberate important clinical data that could be used for public health purposes using the First Amendment and the Freedom of Information Act as tools. A particular area of focus is defending against cases that are using free speech as a weapon to upend FDA regulations.
Previously, Kenney was a Thomas C. Grey Fellow and lecturer in law at Stanford Law School. Prior to that, she was a fellow at the National Women’s Law Center, where she worked on a cross section of issues affecting women’s health and was an associate in the Appellate & Supreme Court practice group at Wilmer Cutler Pickering Hale & Dorr in Washington, D.C. She clerked for now Chief Judge Roger L. Gregory on the United States Court of Appeals for the Fourth Circuit and Judge Miriam Goldman Cedarbaum of the United States District Court for the Southern District of New York. Kenney received her J.D. from the Berkeley School of Law in 2009 and her A.B. from Dartmouth College in 2005.
Exploring Free Speech on Campus
The Law School is leading the conversation about the importance of free speech on the Cornell campus and beyond.
In partnership with Cornell University president Martha E. Pollack, the Law School is sponsoring the Free Speech Presidential Speaker Series, which brings preeminent legal scholars to Cornell for campus-wide discussions about freedom of speech. The series was initiated by President Pollack as part of her effort to create a campus climate that is “more diverse and inclusive, and that expresses greater respect and understanding.” The inaugural event in the series featured constitutional scholar Erwin Chemerinsky, dean of the University of California, Berkeley School of Law, who spoke on November 20, 2017. The second event, held April 10, 2018, was a conversation between Nadine Strossen, former president of the American Civil Liberties Union and professor of law at New York Law School, and Jeremy Waldron, professor of law at New York University Law School.
Strossen and Waldron Discuss Hate Speech
Two preeminent legal scholars agreed that hate speech is protected by the First Amendment under certain circumstances. But their opinions diverged on how most effectively to reduce hate speech incidents and their potential harmful impact.
Nadine Strossen and Jeremy Waldron brought differing points of view to the topic of hate speech April 10 in Myron Taylor Hall. Sherry Colb, professor of law and Charles Evan Hughes Scholar at Cornell Law School, moderated the discussion.
Both Strossen and Waldron agreed that the First Amendment protects hate speech—but not when it satisfies what is known as the “emergency principle.” When the hate speech poses a threat that can be averted only by suppressing the speech, it is punishable under U.S. law. “And the sad fact is a lot of hate speech does satisfy the emergency principle: it constitutes a general threat or targeted harassment or hostile environment harassment or an intentional incitement of imminent violence,” Strossen said.
However, Strossen and Waldron disagreed about the best way to deal with hate speech. Strossen said the best remedy is free speech and counter speech, while Waldron advocated for laws that would prohibit hate speech.
Historically around the world these laws have disproportionally singled out the dissident views of minority speakers and groups, Strossen said. “That is not a coincidence. After all, these laws are enforced by the government, or by the university if we’re talking about a public campus, which is accountable to the majority, not accountable to minority groups,” she said.
Just as important as avoiding censorship laws is the need to
resist hate speech with free speech,“ which I am convinced will do more to counter the scourge of hatred,” Strossen said.
Waldron described the way legislators around the world have defined hate speech. (The United States is the only liberal democracy without laws or codes against it.) It’s tempting, he said, to think we can define hate speech, as we do hate crimes, in terms of the motivation of the speaker.
But most advanced democracies do it the other way around: they prohibit speech that is likely to elicit, generate, incite, or cause hate, Waldron said. This type of legislation is “looking for the effect of speech and the impact that it’s going have on the community, rather than it just being a cathartic expression of hatred by the person speaking,” he said.
The campus context is different because it is a community of free inquiry, “a place for speaking,” he said. And it is a place where, in living memory, mobs have screamed ugly epithets at members of some groups trying to get an education. “Campus administrators might reasonably think that they have to balance their obligations to free speech … with the possibility that the environment might be polluted, poisoned, in this way,” he said.
Strossen countered by saying India, for example, which has laws prohibiting hate speech, has seen many examples of politicians launching hate speech charges against their adversaries. Ironically, the laws have done more to stir up intercommunal violence than to alleviate it, she said.
Waldron pointed out that many countries have laws that prohibit group libel, such as defamation of a minority group. These laws offer the basic assurance of inclusion in society for all members, he said.
Chemerinsky Says Campuses Must Protect Free Speech—Even Hate Speech
Colleges and universities must create supportive academic environments for all students while also upholding free speech—even if that speech includes hateful ideologies, said renowned constitutional scholar
“I strongly feel that colleges and universities have the duty to be an inclusive environment for all students, but I don’t think that can be achieved by censoring speech,” said Chemerinsky, dean of Berkeley Law, School at the University of California, who spoke November 20 in Alice Statler Auditorium.
Eduardo Peñalver, the Allan R. Tessler Dean of Cornell Law School, introduced Chemerinsky and moderated a Q&A session after his lecture.
Students in the 1960s advocated for their right to speak freely, Chemerinsky said, whereas today free speech issues often arise when outside speakers come to campuses, sometimes to communicate an offensive agenda.
The current law says all ideas and views can be expressed on public university campuses. “Even if it’s very offensive speech, it’s still protected by the First Amendment,” he said. The amendment does not apply to private universities—although Chemerinsky thinks they should also follow the principle, he said.
Many scholars argue hate speech should not be protected, especially when it threatens minority students. Chemerinsky disagrees, he said. “The law is clear: hate speech is protected by the First Amendment.” For example, in 1977 the Supreme Court ruled the Nazi Party had the right to march in Skokie, Illinois, even though most of the residents of that town were Jews and Holocaust survivors.
And in the 1990s, more than 350 universities and colleges
adopted so-called hate-speech codes. However, Chemerinsky said, “Every one to be challenged in court without exception was declared unconstitutional.”
Why is vile speech protected? In part because hate speech is hard to define in legal terms, he said. He cited the University of Michigan’s now-defunct hate speech prohibition as an example; every action enforcing it was brought against African American and Latino students—the very individuals the prohibition was meant to protect, Chemerinsky said.
Can students legally drown out a speaker with whom they disagree? No, he said. The right to free speech does not include the right to disrupt the speech of others. “Otherwise there would always be a heckler’s veto,” he said. “The only speech then we would ever hear is that which is sufficiently noncontroversial that no one wants to stop it.”
History has shown restricting viewpoints on campus can be a dangerous practice, he said. In the 1950s, many universities tried to fire professors for allegedly being Communists. In the 1960s, professors and students were frequently censured for their anti-war and civil rights protests.
“The First Amendment is ultimately based on a faith that we’re better off allowing all ideas to be expressed than [allowing] our government officials to punish some of them,” Chemerinsky said. “I have to say I generally share that faith, but I have some doubts too.”
“Lawyers in the Best Cents”
Cornell Law Grads See Debt Falling and Jobs Calling
Over the past five years, Cornell Law has boosted financial aid while maintaining one of the very best job placement rates of any law school.
Water is wet. Ithaca is gorges. Law school is expensive.For prospective law students staring down a sticker price that tops $60,000 a year, all of these truths seem equally self-evident. And they’re not wrong.
Look beyond the raw tuition cost, though, and the picture gets rosier, and the debt payments a bit less scary. A law degree from Cornell is still a major investment for most students, but, now more than ever, it’s an increasingly safe one.
Over the last five years, per capita student debt at Cornell Law School has dropped by nearly 20 percent, driven by financial aid spending that has nearly tripled. Meanwhile, student debt at Cornell Law’s eight closest peer schools has remained static over the same period, falling by only 0.17 percent.
“The declining student debt of our graduates is something that distinguishes Cornell Law School from many of our peers,” says Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law. “It reflects the impact of our increasing financial aid support, as well as our efforts to keep tuition increases under control. Coupled with our generous loan forgiveness program, declining debt loads mitigate the impact that debt can have on limiting student career options after graduation.”
However eye-catching debt is, it’s only half of the equation. Recent Cornell Law graduates have achieved impressive success in the job market, with 97 percent of last year’s graduating class finding full-time work in positions requiring bar passage. That success was a major factor in the loan financing company SoFi naming Cornell Law School one of the best values in the nation in 2017. SoFi reported that recent Cornell Law graduates made the highest salaries of any school’s alums, earning an average of more than $183,000 three years out of law school.
“There’s a huge emphasis on return on investment in law school, and it’s my pet peeve in a lot of ways because there is no strict return on investment in education. It’s a lifelong benefit that’s very difficult to quantify,” says Monica Ingram, the Law School’s associate dean of admissions and financial aid. “But in terms of those who want to apply these business principles to law school, we work really hard for them to be able to showcase that it’s an excellent investment, and one that, even if a student were forced to take out the full cost of attendance, would be something that they could recoup.”
Despite the school’s location in “centrally isolated” Ithaca, Cornell Law grads in the class of 2017 ranked third nationally for placement at the largest law firms. Brandon Bias ’18 is continuing that trend. A merit scholarship helped Bias afford attending the Law School, where he became an articles editor on the Cornell Law Review. Following his graduation this May, he’ll be starting work at Davis Polk & Wardwell in New York City. “His employment prospects in the next ten years are much better than mine,” joked Ingram.
Things looked much less certain when Bias arrived at the Law School three years ago, though. The product of a blue-collar household, Bias was the first person in his immediate family to graduate from college. He dodged student debt during his undergrad years thanks to an athletic scholarship. However, when he was accepted by Cornell Law School, Bias initially did not receive financial aid, and had to decide whether the up-front cost of attending Cornell full freight was worth it.
“I really bit the bullet and just looked at the career outlook and the type of salary I could make to pay my debts off,” Bias said. “It just made so much more sense to come here and roll the dice and see if I could get some money. And I knew a lot of that would be predicated on my doing well, and I just made sure that was my priority, to be able to have the opportunity to possibly get a merit scholarship later on.” Bias’s hard work as a 1L paid off: going into his second year, Cornell granted him a $20,000 scholarship
More financial aid spending is the most obvious way to reduce debt, but Ingram pointed to a number of initiatives aimed at helping students by changing how that money is spent. Since she came to Cornell in 2015, her office has been refining its projections for the cost of attending the Law School, and it’s doubled down on counseling students on how not to get in over their heads, and on how much they really need to borrow. “I think it makes a subtle difference in terms of reaching out to students and encouraging them, if they have money that they’ve taken out and they’re not going to use, to return it to the lender so they don’t have to take more out unnecessarily,” Ingram said.
Over the past year, the Law School has been testing out a new plan to reapportion how students receive their scholarship money. Previously, financial aid recipients split their award evenly over their three years at Cornell, but that doesn’t take into account the tens of thousands of dollars students doing summer associateships at big firms can expect to make during their 2L summer. So, the Law School is currently experimenting with giving students most of their scholarships in their first two years, when it’s most needed. “We’re trying to be creative, looking to some of our peers for best practices, trying to reallocate the distribution of scholarships for those who receive it so it can mitigate the type of debt they’ve taken out earlier in their education,” said Ingram. Students who work as summer associates can put those salaries toward the third year and hopefully borrow less, while even students who aren’t making as much money over the summer will end up paying less in interest if they can put off taking more loans until their last year. If it proves successful, the trial program could be extended into future years.
Not every student is looking to go into corporate law, but that doesn’t mean that they have to face a lifetime of debt payments. Mary-Kathryn Smith ’19 worked on capital punishment issues in her home state of North Carolina before matriculating at the Law School, and as she puts it, “I’ve just kept narrowing and narrowing my interest” since arriving in Ithaca. Her 2L year has been especially transformative, including opportunities to interview clients’ families in Tanzania as part of Professor Sandra Babcock’s International Human Rights Clinic and to work on a death penalty appeal in South Carolina with Professor John Blume as part of the Capital Punishment Clinic. “Part of why I’m so glad I came to Cornell is that the death penalty expertise here among the top law schools, I think, is unrivaled,” she said. “We just have such a powerhouse team of professors here who know so much about the field.”
Applying to law schools, Smith didn’t have any monetary support from her family to fall back on, so finances were near the top of her mind. “I knew that I wanted to do public interest. I also knew that I’m a very risk-averse person, and that if I went to a school where I was paying the full tuition, or anything close to it, I would inevitably freak out and go into Big Law,” she said. “So I went into the application process saying, ‘I want to go to a good school and I want a full scholarship or something close to it.’ That was always the goal: to do public interest and to feel like I wasn’t just doing it, but that I was being smart about it.”
Everything changed when, about a month after getting her acceptance letter from Cornell, she was invited to apply for the Charles Evans Hughes Scholarship, a recently created merit-based program at the Law School that pays full tuition for a select number of students. Smith had already been impressed by Cornell, but being selected as a Hughes Scholar tipped the balance, and has let her pursue her dream of public service without worrying that it will sabotage her financial well-being. “The scholarship really changed my life,” Smith said. “I’m thankful every day that I got it.”
“I really felt like once I got to Cornell, they would be watching out for me. They understood why I was there.”
Professor Nelson Tebbe explains the freedom of expression issues at stake in Craig v. Masterpiece Cakeshop, Inc., which is before the U.S. Supreme Court.
When a baker provides a wedding cake for a reception, is she or he engaged in expression? Before June, the Supreme Court will decide Craig v. Masterpiece Cakeshop, Inc., where that question is presented, among others. It is particularly consequential because the interest on the other side is equal citizenship guaranteed by a core civil rights law. Depending on how the opinion is written, it could affect both the First Amendment and equality law for generations.
Here’s the background. Charlie Craig and David Mullins were planning a wedding reception near their home in Colorado. (The couple planned to marry in Massachusetts and celebrate with family and friends afterward in Colorado, where the civil marriage laws then still excluded couples of the same sex.) On the recommendation of their wedding planner, they visited Masterpiece Cakeshop, in Lakewood, Colorado, where they met with Jack Phillips, its owner and primary baker. Craig’s mother, Deborah Munn, went with them. The couple sat down with Phillips, introduced themselves, and explained that they were looking for a cake for their “wedding.”
Before they could say anything more, they were told that Phillips would not help them because of his religious opposition to marriage between people of the same sex.
After the couple brought their legal challenge, Colorado found that Phillips’s company had violated the state’s public accommodations law. Under that law, businesses that are open to the public may not discriminate against customers on the basis of protected characteristics, including race, religion, sex, and sexual orientation. Colorado concluded that Masterpiece, a corporation, was open to the public and had discriminated against Craig and Mullins on the basis of their sexual orientation. Phillips argued that both he and the corporation were protected by the free exercise and free speech provisions of the First Amendment, but those arguments did not prevail in the lower courts. That ruling was not surprising. Lower courts considering wedding vendor cases have overwhelmingly refused to create exemptions from state civil rights laws.
In the Supreme Court, Phillips and Masterpiece stand a better chance of succeeding on their speech and religion claims. Although I coauthored an amicus brief on the religious freedom question, I will confine myself to the speech issue, in keeping with the theme of this issue of the Forum. In essence, there are two ways to think about the question: either asking whether the cake expresses a message, or considering the question regardless of whether expression is involved. Let’s consider these two possibilities in turn.
First, is a wedding cake expressive? Jack Phillips considers himself an artist, and he maintains that providing a cake would send a message of endorsement of Craig and Mullins’s marriage. According to Phillips, he has no animus toward LGBT citizens as such, and he would be happy to serve them in other contexts. But he cannot in good conscience bake a wedding cake for their celebration, just as he also refuses to provide confectionaries for Halloween. His lawyers even acknowledge that, consistent with the Constitution, he could be required to sell an off-the-shelf cake, but they maintain that he was being asked to provide a custom creation. And the First Amendment guarantees that people cannot be compelled to utter messages with which they disagree.
On the other hand, a wedding cake may not convey any message at all—or at least no message of the baker’s, as opposed to the couple’s. Cornell professors Michael Dorf and Steven Shiffrin, along with UCLA professor Seana Shiffrin, have filed an amicus brief where they argue that wedding cakes do not carry any message that contradicts Phillips’s views. They distinguish a previous case where Massachusetts sought to require organizers of an Irish-American Day parade to include an LGBT group, because the state was altering the organizers’ actual message. But here, Colorado was simply requiring Phillips and the company not to engage in discriminatory conduct, wholly apart from any message.
At oral argument, the justices asked several questions of Phillips’s lawyer that exposed some of the difficulties in drawing the line between expressive and nonexpressive wedding services. The lawyer argued that while custom floral arrangements and the invitation are expressive, hair dressing and makeup artistry are not. When she tried to maintain that the chef who creates the rest of the food for the wedding is not engaged in an expressive endeavor, but the baker is, Justice Kagan expressed surprise. And she was not alone. It is safe to say that several of the justices seemed skeptical that such a line could be drawn in a principled manner.
But Colorado has a second argument, namely, that the couple should prevail regardless of whether the cake is expressive—that is, even assuming that it does carry a message. How could that be? Professors Dorf, Shiffrin, and Shiffrin explain that what Colorado prohibits is exclusion of customers because of their sexual orientation. That is prohibited regardless of whether the cake is expressive, and even regardless of whether it carries an explicit message endorsing marriage equality. What Phillips may do, however, is refuse to transmit an expression with which he disagrees. The First Amendment protects his right to say what he wishes. So Phillips could exclude all cakes that carry the words “Marriage equality is just” because he would be rejecting that sentiment no matter who asks him to express it. His problem here, however, is that he rejected the couple not based on the words or meanings they wished to convey, but instead based on their identity. That he excluded only LGBT people in certain settings (weddings) is of no moment, under settled law.
Floyd Abrams and Laurence Tribe. It makes sense of another circumstance in the case, namely, that a customer named William Jack tried to get other bakers to provide wedding cakes that bore messages supporting traditional marriage, along with biblical quotations. When the bakers refused, he reported them to Colorado authorities. But the state refused to take action, saying that the bakers rejected the traditionalist cakes because of their message, and not because of William Jack’s religious beliefs. That makes perfect sense if public accommodations may exclude messages, but not customers. (They may also be restricted in speech that is incidental to discriminatory conduct, such as a sign in the shop widow that reads, “No same-sex couples served.”) It also makes sense of a separate decision, where a court protected the ability of a T-shirt business to exclude shirts that bore gay pride messages, regardless of who created or wore the shirts.
This second argument was also endorsed by Colorado in its brief to the Court, and by prominent First Amendment authorities such as
This latter argument also encountered some skepticism from the justices at oral argument. For example, Justice Alito asked whether it’s always possible to separate the meaning of a message from the context of the customer. He envisioned a couple that requests a cake saying, “November 9 is the best day ever,” because it’s their anniversary, as opposed to someone who wants exactly the same cake in order to celebrate Kristallnacht.
So it is impossible to say whether either of the free speech arguments will prevail. Quite possibly, the case will be resolved on religious freedom grounds instead. What does seem certain is that the decision will be eagerly anticipated, not only by the Cornell professors who filed influential briefs, but by everyone interested in the future of the First Amendment and antidiscrimination law. n
Professor Michael Dorf explores how free speech claims on campus depend greatly upon the context in which the speech occurs.
Lately, university campuses appear to be sites of both too much free speech and too little free speech. A white supremacist rally last summer in Charlottesville, home of Thomas Jefferson’s beloved University of Virginia, sparked justifiable outrage. Meanwhile, conservative speakers or their hosts have found themselves under literal attack at Middlebury College, UC-Berkeley, and elsewhere. Cornell too has found itself embroiled in controversy, occasioned by incidents involving racist speech in Ithaca.
All institutions must grapple with how to reconcile commitments to freedom of speech and to creating inclusive, welcoming communities for everyone, but universities appear to have a special burden, because free speech is especially important to freedom of thought and research, which are the raison d’être of modern universities. Does it follow that we should place a thumb on the scale on the side of freedom of speech when these issues arise in the university setting?
Yes and no. Free speech issues might be resolved differently in a college or university (what I’ll call “campus”) setting from how they might be resolved in general, but the difference the campus setting makes depends on the question. In some contexts, the fact that speech claims are made on campus should make them stronger relative to competing claims; in other contexts, the fact that speech claims are made on campus should make them relatively weaker; and in still other contexts, the campus setting should make no difference.
That might not seem like much of an insight, but it is nonetheless worth highlighting, because there is a tendency in public debate about campus speech for conservatives to accuse liberal academics of hypocrisy—of wanting to deny conservatives freedom of speech (by campus speech codes, say) in the one setting where it should be sacrosanct. There may indeed be hypocrisy afoot (on the part of liberals, conservatives, and/or others), but the fact that some speech claims are weaker in virtue of occurring in the campus context is not necessarily evidence for that fact. The difference that the campus context makes is multivalent.
Let me state my question precisely: Whatever one thinks is the ideal approach to a free speech question when it arises in a non-campus setting, how should that approach differ, if at all, when the question arises in a campus setting?
By “ideal” I do not mean an ideal interpretation or construction of the First Amendment or any other legal provision, although I shall refer to First Amendment doctrine as a point of reference. I mean something like what any particular reasonable person would think is an appropriate approach, all things considered. Because I am not asking a constitutional question, I won’t distinguish between public colleges and universities (to which the First Amendment applies of its own force) and private ones (to which it does not apply).
I shall note characteristics of the campus context that, relative to the non-campus setting, count for, respectively, (A) extra protection for speech, (B) less protection for speech, and (C) the same protection for speech.
A. Extra Protection for Speech
Colleges and universities are havens of academic freedom. In
recent years, some people have questioned the need for tenure and its efficacy in promoting academic freedom. It probably won’t surprise anyone to hear that I, as someone with tenure, think it’s a defensible institution. Let us put tenure aside, however. Although tenure is the chief mechanism by which colleges and universities protect academic freedom, academic freedom should be respected by colleges and universities even when a faculty member lacks tenure.
Suppose that an untenured faculty member of a college or university writes a blog on which she expresses controversial views. Despite the lack of tenure, she should not be subject to any adverse consequences because of the views she expressed there. Partly that is just a matter of jurisdiction. I would reach the same judgment outside the university context. For example, I would not want a veterinary practice, hardware store, or floral shop to discipline employees for expressing politically unpopular views on their own time.
However, academics should get special protection. The veterinary practice, hardware store, and floral shop all have business interests that are substantial enough to justify the firms in insisting that the employee disassociate herself from the firm. If an outspoken blogger identified herself as “nighttime manager of the Acme Hardware Store on Seventh Street,” I would think that Acme should be able to tell her to remove the Acme affiliation from her blog. By contrast, Cornell should not be able to insist that I remove the Cornell affiliation from my blog.
Why not? Because people understand that the views expressed by a professor are not institutional views. To be sure, people also probably understand that the views of Acme’s nighttime manager about non-hardware-related matters do not reflect Acme’s views, but one of the very reasons for the existence of the college or university is to encourage robust debate through uninhibited expression of views, including controversial ones. Having people out there affiliated with your institution saying controversial and unpopular things simply goes with the territory of running a college or university.
I have thus far articulated the idea of academic freedom as protecting what we might think of as extramural speech. It is even more central to scholarship. Galileo should be our poster child. Although Renaissance Italian universities were the precursors to modern universities, they did not embrace academic freedom in its full modern sense. Even so, Galileo mostly ran into trouble with the church rather than with his colleagues as a university professor.
How far have we come since Galileo’s time? Far, but maybe not far enough. Even today, colleges and universities do not allow for ideal academic freedom because of disciplinary conventions and departmental autonomy. One cannot be fired for publishing Keynesian work in a Hayekian economics department (or vice versa), but good luck getting hired in the first place. Such ideological reproduction is a genuine problem, I admit, but the crucial point is that, even with ideological and disciplinary influence, campuses do and should provide for greater opportunities to promote dissident views than other institutions, such as for-profit businesses.
Academic freedom also properly extends to the classroom setting. This is not uniquely true of higher education, as teachers in primary and secondary school need freedom to explore diverse ideas. So do students. But, for a variety of reasons that I’ll explore next, the classroom setting is a double-edged sword.
B. Less Protection for Speech
The classroom context is a structured forum that appropriately allows for some limits on speech that would be inappropriate off campus. If a citizen wants to wear a T-shirt with the slogan “Global warming is a Chinese hoax” or “Vaccines cause autism,” no speech-respecting society would forbid her from doing so. However, if an exam in a class on environmental science or epidemiology poses a question seeking a balanced appraisal of the evidence regarding climate change or autism, a student can appropriately be marked down for spouting ideological propositions without disciplinarily relevant support.
Classrooms are also different in another way. When you take a class you have classmates who will sometimes say things with which you disagree. That is to be expected and encouraged. However, there is a line between a strong statement of views and blatant disrespect. Neo-Nazis and Klansmen may have a right to use racist epithets as part of an otherwise peaceful march or rally, but a student should have no right to use such epithets in class. Like other structured settings, a classroom properly has rules of decorum and relevance that restrict speech in ways that would not be appropriate (or at least would be less appropriate) in general.
Campuses are not just places for faculty and students to teach, learn, and study. They are also homes. This is obviously true with respect to dormitories, but even students who live off campus, as well as students who live on campus but are not in their dorm rooms at any given time, properly can expect to experience at least part of the campus as a place of repose. Just as we might think that a right to picket applies differently in a business district than in a residential neighborhood, so we might think that students are entitled to be shielded from unwanted messages, at least some of the time and in some places on campus.
That point was expressed, admittedly in an incendiary way, by one of the Yale students who yelled at a Silliman College administrator during the now-infamous 2015 Halloween costume controversy. He told the administrator that it was the latter’s “job to create a place of comfort and home for the students who” lived in the residential college he directed. The administrator disagreed.
They were both right. Residential colleges are supposed to be living spaces as well as centers of social and academic life in which young minds grapple with challenging ideas. In that regard, a residential college is a microcosm of a college or university as a whole. Because it is in part a home, students should be entitled to some greater privacy and ability to shut out unwelcome messages; but, because it is not only a home, at least in some times and some places on campus students should not be entitled to quite the level of protection from unwanted messages that we think everyone is entitled in their home.
C. Same Protection for Speech
In some respects, a campus is just like the rest of the community. Campuses typically include open spaces that look and function like parks. They often have streets and sidewalks. Events like rallies, protests, and marches seem no more or less appropriate in a campus setting than in any other setting with similar physical characteristics. This will be especially true where the target of a rally, protest, or march is college or university administration. Just as there is and ought to be a core right of citizens to rally near the statehouse to protest a pending bill to lower the minimum wage, say, so students and their supporters should have a core right to rally outside the university administration building to protest a proposed tuition hike. Of course, such speech can be subject to reasonable time, place, and manner restrictions both on campus and off. I generally find the Supreme Court’s First Amendment time, place, and manner framework sensible, even though I don’t agree with every aspect of it, but my point is that whatever one thinks about it, in this respect the campus setting probably shouldn’t make much of a difference.
I have not attempted to catalogue all of the ways in which free speech on campus might differ (or not) in one or another direction from free speech in other settings. I hope I have given sufficient examples to illustrate the basic point, which is that the category of “free speech on campus” lumps together many different concerns that cut in different directions.
A version of this essay first appeared on Professor Dorf’s blog, DorfonLaw, on November 17, 2017.