Bench Memos

Law & the Courts

The Sorry State of Free Speech at Harvard Law School

Yesterday the student protesters who have been occupying the student lounge at Harvard law school encountered posters criticizing them for violating the free-speech rights of other students. And—this isn’t an April Fool’s joke—they responded to this free-speech complaint by tearing the posters down and by declaring that they would determine what speech is allowed in the space that they’re occupying.

Even worse, Marcia Sells, the law school’s dean of students, facilitated the violation of students’ free-speech rights under campus rules, as she objected to one set of student posters on the ridiculous ground that the poster’s comparison of the protesters to Donald Trump could somehow jeopardize the law school’s tax-exempt status.

The tearing-down of posters containing unwelcome speech by other students (and making no reference to Trump) has continued yesterday and today. [Addendum: Here’s a video.]

Harvard law school dean Martha Minow has now issued a statement “reaffirm[ing] our commitment to the values of free exchange and free speech,” but it’s far from clear whether she can be taken seriously. Minow recites university rules that provide that interference with freedom of speech is a “serious violation,” but she offers no sign that she will take any disciplinary action against the violators.

Minow herself has been an enabler of the occupation. For starters, she has covered up the obvious hate-crime hoax that helped to precipitate it. Further, her new missive reflects her own viewpoint discrimination in favor of the protesters, as she justifies their “extraordinary use” of the student lounge—i.e., their longtime occupation of it—on the ground that the protesters are raising “issues of pressing importance.”

Minow’s statement could be read more hopefully to indicate that she will soon be putting an end to the occupation of the lounge and will instead be offering some new “centrally located space” as a substitute. We’ll see. 

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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