Trial Magazine

Free Speech on Campus

By Erwin Chemerinsky and Howard Gillman
Yale University Press
216 pp., $26
yalebooks.yale.edu

Most trial lawyers understand the perils of underestimating their opponent, a risk that may arise when you fail to learn about ­viewpoints with which you disagree. By examining the importance of ensuring that colleges and universities offer a free exchange of ideas, Free Speech on Campus is an important reminder about the dangers of dismissing perspectives contrary to yours.

Legal scholar Erwin Chemerinsky, dean of UC Berkeley School of Law, and Howard Gillman, chancellor of UC Irvine, identify the truly successful American university as “an open platform, not one reserved for those who are thinking correct thoughts.” They argue that campuses are places where censorship should almost never exist, where ideas should be explored and challenged, and where the principle nullius in verba—“take nobody’s word for it”—should thrive. The authors describe how, while only public universities are legally obligated to do so, institutions of higher learning should protect freedom of speech by preventing censorship of even potentially offensive or hateful ideas, so long as the speech is not harassing, truly threatening, or otherwise unprotected by the First Amendment.

Protecting freedom of expression on campus, the authors explain, serves an important pedagogical obligation to nurture idea diversity, reducing “errors of groupthink.” The authors emphasize the need for this open dialogue, which they describe as crucial to ensuring “the future of civic discourse and democratic practice in the United States.”

The book offers guidance on how to promote diverse ideological discourse on campus while protecting the safety and function of the learning environment, but that is not the limit of its message. Undeniably, we are all susceptible to the comfort of restricting our perspective to what we find appealing and familiar. But as trial lawyers seeking justice, we must welcome an open ­discussion of all arguments and ideas—even those we later choose to rebut.

The key to success in trial is getting jurors to understand how our clients’ cases are relevant to their lives. Creating an open discussion helps us appreciate different perspectives, give credence to opposing arguments with merit, honestly evaluate weaknesses, and facilitate compromise when appropriate to do so.

By viewing an issue from all sides, we can develop strategies to overcome “persistent ideological divisions” and engage the jury in a collective effort to do justice. As Free Speech on Campus teaches, promoting justice requires that we protect the free speech of those with whom we disagree as vigorously as we protect our own expression.

Seth Carroll is a founding partner of Commonwealth Law Group in Richmond, Va. He can be reached at scarroll@hurtinva.com.