We live in an unusual time. Just at the moment when federal courts — from multiple points of the ideological compass — are granting ever greater protections for key American liberties, American citizens feel far less free than they did even a few short years ago. The reason is obvious. While the law still protects individual liberty from government interference, powerful private actors are increasingly punitive against even mainstream political positions they dislike.
Online boycott and shame mobs, for example, constitute a direct frontal attack on the culture of free speech. Silicon Valley censorship isn’t unlawful, but it still has a profoundly chilling effect on free speech. There are many, many people who don’t share their sincere and loving religious beliefs, for example, for fear of lost jobs and online attacks.
But free speech isn’t the only important constitutional value in cultural peril. Due process is in the crosshairs, and last week Harvard University provided a disturbing and textbook example of the power of private actors to punish the exercise of vital American freedoms. In a letter dated May 11, Harvard College notified the residents of Winthrop House, a residential house for undergraduates, that their Faculty Deans — Ronald Sullivan and his wife Stephanie Robinson — were effectively terminated. Though they both still teach at Harvard Law School (Sullivan runs its Criminal Justice Institute), Harvard was not renewing their deanship.
This internal personnel decision was national news for a clear and simple reason: Sullivan came under fire when he joined Harvey Weinstein’s defense team. As the New York Times wrote, “many students expressed dismay, saying that his decision to represent a person accused of abusing women disqualified Mr. Sullivan from serving in a role of support and mentorship to students.”
Students launched a petition demanding his removal as dean. “Dozens of protesters” demonstrated outside an administration building, holding up signs that said “Remove Sullivan” and “#MeToo.” The editors of the Harvard Crimson attacked his decision to defend Weinstein. And graffiti was sprayed on Harvard buildings, including statements such as “Our rage is self-defense” and “Whose side are you on?”
Rather than defending the embattled dean — Harvard’s first black faculty dean — the university initiated a “climate review,” and the results of that review provided the pretext for his termination. Harvard claimed that concerns about the climate in Winthrop House were “serious and numerous,” and the “actions taken” to improve the climate were ineffective.
The Harvard Crimson reported on claims that Sullivan’s leadership at Winthrop was toxic regardless of his representation of Weinstein, but it’s hard to escape the conclusion that but for the student protests, he’d still be a dean. Moreover, it’s unclear if his supporters felt free to speak. Sullivan told Sean Illing at The New Yorker that many of his supporters “feel as though they cannot say anything publicly because they will be tarred and feathered as ‘rape sympathizers’ and that they’re disinclined to step out publicly.”
Ironically enough, the activists’ cultural triumph comes exactly at the moment when progressive judges — especially progressive judges in California — are handing campus #MeToo activists a series of stinging legal defeats. Courts are rejecting university efforts to strip students accused of sexual assault of fundamental due process rights, and in California, a series of rulings brought 75 campus adjudications to a screeching halt. In California, “fundamental fairness requires that accused students have a right to a hearing and to cross-examine their accusers.”
But there’s more than one way to damage due process, and if social pressures make it difficult for defendants to retain good representation, then courts can protect due process all they want — defendants will still face a serious disadvantage. Writing in The New Yorker, Harvard Law School professor Jeannie Suk Gersen observes that the “climate” for those who defend clients accused of sexual misconduct “has changed.” She says there is “such a stigma attached to people accused of sexual misconduct that anyone who defends legal principles on their behalf risks being mistaken, in the public mind, for a defender of sexual violence.”
Gersen’s correct to note that “lawyers have always been vilified for taking on unpopular clients,” but defense lawyers are now endangering their good standing “even in the most liberal communities, Harvard being only one example.”
This is an ominous development for American liberty. Even a well-designed justice system is only as good as the people who populate it, and systems that vilify defense lawyers can deter the best attorneys from the field. Rights to fair hearings and cross-examination are less valuable when your representation is less competent. Gersen is spot-on:
As a matter of constitutional law, denying someone a defense lawyer is depriving that person of their rights, especially if the risk of punishment is involved. Just as crucially, a world in which lawyers are afraid to defend people against a certain kind of accusation is a world in which those accusations can never really be tested or verified, where guilty verdicts bear the whiff of a sham.
In February, I wrote a short piece expressing the hope that the legal victories for due process on campus would help build momentum for a cultural revival. I’m less optimistic now. Harvard’s action shows that the culture war still rages, and when one of the world’s most elite and most powerful institutions imposes sanctions after students demand punishment for the “crime” of representing a criminal defendant in court, it looks as if the forces of liberty are losing momentum.
I confess (much to my shame) that when I was a student I had a very different view of the defense bar. I wrongly idealized prosecutors, and I failed to appreciate the vital need to defend the Constitution and constitutional processes even when a defendant is guilty as sin. I was educated out of my error, in the classroom and through lived experience. But faced with its own teachable moment, Harvard chose not to educate but to capitulate. The students are in charge now, and they want to teach us their own intolerance. It’s a lesson our culture is learning all too well.
Something to Consider
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