David French on Sloppy Speech Code Comment in ‘Harvard Law Review’

In a blog entry penned for Phi Beta Cons yesterday, Alliance Defense Fund Senior Counsel and former FIRE president David French directs his readers to Kelly's thorough critique of a "Recent Cases" comment published in the Harvard Law Review's April edition.

Shockingly, the Harvard Law Review comment argues that the precedential speech code decision DeJohn v. Temple, 537 F.3d 301 (3d Cir. 2008) is wrongly decided and that speech codes on public campuses are constitutional. Just as disappointing and surprising as this wrongheaded conclusion, however, are the shoddy arguments the comment slaps together to support it. Kelly's devastating riposte—which David deems a "definitive takedown"—points out that the comment (a) blithely ignores the extensive federal caselaw striking down speech codes on constitutional grounds; (b) grossly distorts what existing precedent it does cite; (c) dimly argues in favor of applying workplace harassment standards to the classroom; and (d) concludes that grade school students and college students should enjoy the same (sharply limited) right to freedom of expression on campus. In short, the comment is a farce, and both Kelly and I are surprised it survived the presumably rigorous editing procedures in place at the Harvard Law Review in any form. The comment should not have been published; that it is left unsigned is the HLR's policy, but it is also the anonymous author's good fortune.

Unfortunately, the publication of such a lousy comment isn't just a problem for the HLR's good name—it's a problem for all of us who value the First Amendment on our nation's public campuses. Indeed, the real problem with this bogus comment seeing the light of day in a prestigious journal like the Harvard Law Review is that lawyers and scholars arguing on behalf of unconstitutional speech codes now have a piece of purportedly reputable "scholarship" to point to as some kind of authority for their argument.

As David points out in his blog entry for Phi Beta Cons, this dangerous scenario has already happened:

While university lawyers often defend these policies (usually by arguing that the language is justified by high-school precedents or that the rules aren't really mandatory — even as students endure investigations and punishment), it is rare to see any mainstream academic defense. Well, not until recently anyway, when a few third-year law students published a poorly reasoned attack on DeJohn v. Temple, the most recent (and leading) federal court of appeals precedent, which struck down Temple University's speech code.

Why is it news when third-year students publish their thoughts? It's news when it's in the Harvard Law Review, which is still read by a not-insignificant number of legal scholars. In fact, the article was just cited by Los Angeles City College in a motion asking Judge George King to reconsider his injunction against the College's speech code.

Sadly, I'm willing to bet that this won't be the last time that desperate lawyers for schools that maintain unconstitutional speech codes seize onto this comment and wring it for all its worth in their briefs. I can only imagine what a shining beacon of Lexis-Nexis hope this slipshod comment must appear to be to counsel confronted by the daunting task of arguing against the First Amendment and the weight of precedent in favor of repressive speech codes. Of course, the only problem is—as Kelly's critique so completely proved—that the comment's arguments are, upon further examination, complete bunk.

David wryly observes that the comment reads like it "could have been ghost-written by Temple's attorneys." It's true; the piece marshals the worst arguments Temple made in DeJohn and resuscitates them unthinkingly. Here's hoping that federal judges like Judge King in California see the comment as the half-baked scholarship that it is and aren't dazzled by the Harvard Law Review's fancy pedigree. Thankfully, if Judge King needs reasons to discount the HLR's authority here, Kelly's already done the homework.