Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Tuesday, July 18, 2017

Can Neurophysics Inform Free Speech Theory?

In a recent op-ed in The New York Times, Northeastern University Psychology Professor Lisa Feldman Barrett argues that some forms of repugnant speech are the functional equivalent of physical violence and that this principle can help us draw lines between acceptable and unacceptable speech on college campuses and elsewhere.

I am sympathetic with many of the views Professor Barrett expresses in her piece.

Like Professor Barrett, I recognize that speech has serious real-world consequences on our college campuses and elsewhere.

And, like her, I strongly disagree with those who characterize our students as being coddled or infantilized simply because we are interested in making a welcoming and inclusive learning environment available to them.

Indeed, I began giving something like "trigger warnings" regarding certain material in my classes thirty years ago, long before the phrase came into use. I did not do so out of "political correctness" or because I thought of my students as "snowflakes," but because it seemed to me like good and considerate pedagogy.

Nevertheless, I depart from Professor Barrett in some important respects.

Professor Barrett's intriguing argument goes like this: certain speech can cause stress; as a matter of scientific fact, prolonged stress can result in serious physical harm (making us sick, altering our brains, killing off neurons, even shortening our lives); therefore, the use of some words is effectively an act of violence.

I defer to Professor Barrett on the scientific underpinnings of her argument.

And I concede that her argument aligns with my own experience. Indeed, anyone who has lived through maturity has likely spent some time on the receiving end of stress-inducing speech and will have sensed first-hand some of its deleterious physical effects.

To this extent, her syllogism seems to me not just logically sound but empirically apt.

But we part company when Professor Barrett argues that these scientific findings provide empirical guidance for which kinds of controversial speech should and should not be acceptable on campus and in civil society.

She contends that the guidance turns on the difference between "abusiveness" and "offensiveness." The latter category, she maintains, is acceptable while the former is not.

Professor Barrett argues that offensiveness is acceptable because "it is not bad for your body or brain." She gives as examples of offensiveness: "fleeing from a tiger, taking a punch, or encountering an odious idea in a university lecture."

This triumvirate of examples puzzles me. It seems to me that taking a punch is, indeed, bad for your body. It also seems to me that fleeing from a gruesome mauling death at the teeth and claws of a tiger is, as stressful events go, right up there. And talking about an "odious idea in a university lecture" in the same breath as these other two experiences seems to treat as functionally identical things that are plainly different.

In any event, Professor Barrett goes on to distinguish these acceptably offensive things from unacceptable abusiveness. She appears to leave abusiveness undefined here, although she clearly believes it has a great deal to do with duration.

The problem with abusiveness, as she describes it, is "long stretches of simmering stress"; "a lot of time in a harsh environment"; and "constant, casual brutality." By her terms, abusiveness seems to be worse because we marinate in it, which I suppose makes sense.

But the omission of a definition here is a critical failing. Marinate in what? Is abusiveness just offensiveness that lasts longer? Or is it something else? And, if it is something else, then what is it?

Furthermore, this part of her argument appears to offer yet another unsatisfying mixing of things that are fundamentally unalike. She refers to a "harsh environment" and "constant, casual brutality" in the same passage. But are harshness and brutality really the same? It seems to me that clearly they are not.

At this juncture, Professor Barrett declares that the principle she has described distinguishes the acceptably offensive speeches of Charles Murray, who contends that genetic factors help account for racial disparities in I.Q. scores, and who in her view should be allowed on campus, from the unacceptably abusive speeches of Milo Yiannopoulos, who she describes as a "provocateur" and "hatemonger," and who in her view should not be allowed on campus. "There is nothing to be gained from debating [Yiannopoulos]," she declares, "because debate is not what he's offering."

I find this argument deeply confusing in numerous respects.

Is it the case that we cannot debate provocateurs and hatemongers? Why? Isn't that one way in which we expose hateful ideas for what they are?

Even if we acknowledge that debate does not always dispose of hateful ideas as quickly or effectively as we would like, are its failings really worse than the dangers of censorship? What has become of Justice Brandeis's famous injunction that the remedy for bad speech is "more speech, not enforced silence?"

Also, isn't it possible that a student sitting in one of Murray's lectures would come out of it feeling abused and wallowing in stress? Indeed, isn't it plausible that the pretensions of legitimacy that attend a speech by Murray make his statements more damaging than the unhinged rantings of Yiannopoulos?

Plus, if duration is key, then why does an hour-long speech by Yiannopoulos's qualify as abusive?

And there's this: according to Professor Barrett's argument, as I understand it, an hour spent listening to the drivel of Yiannopoulos is more traumatic than flight from an attacking tiger. I fully appreciate the outrage that Yiannopoulos evokes in many people. But I am personally not much persuaded by this ranking of relative stressors.

Sympathetic as I am to many of her points, in the end I do not find Professor Barrett's argument a helpful tool in the debate over campus speech or in the mediation of the competing concerns.

Almost thirty years ago, the Supreme Court of the United States in Hustler Magazine, Inc. v. Falwell overturned a jury verdict in favor of the televangelist Jerry Falwell against Hustler Magazine. The jury had found Hustler's parody of Falwell to be "outrageous" and so subject to punishment. The Court declared "outrageousness" to be too vague and subjective a standard by which to determine when speech is protected and when it is not.

In my view, a distinction between acceptable offensiveness and unacceptable abusiveness fares no better.

It does not save us from our current perils and confusions.

It just leads us into new ones.

Sunday, July 16, 2017

Ethics, Addiction, and Vocational Discernment in the Law

Our ethical responsibilities as lawyers are interconnected--so our ethical violations tend to be interconnected as well.

Consider: If we are failing in our duty to diligently represent our client (ABA Model Rule 1.3), then we are probably also failing in our duty to provide competent representation (ABA Model Rule 1.1). This makes it more likely that we will fail to fulfill our duty of communication (ABA Model Rule 1.4), because we will be disinclined to let our clients know that we're not doing their work well or not doing it at all. Putting our own interests before those of our client in this way gives rise to a conflict of interest (ABA Model Rule 1.7)--indeed, a conflict of the worst kind because the client will not know it has arisen and will be powerless to address it. If the client suspects something has gone wrong and asks about it, we may be tempted to mislead or even lie to the client (ABA Model Rule 7.1). And so on and so on.

When you read enough attorney discipline decisions you notice an unmistakable pattern: these failings usually start small; then they expand and multiply; and then they cascade.

These breaches have numerous causes. As in all professions, some lawyers simply are not honest or smart enough to do what they're doing. Others are sufficiently honorable and intelligent, but they get into trouble because their workload has become unmanageable or because they are going through an unusually challenging time, such as a divorce or a physical illness or the death of a loved one.

As a recent and important piece in the New York Times highlights, still others fall into difficulties because of depression, alcoholism, and drug abuse. The statistics concerning these struggles are alarming and there are good reasons to believe that the numbers may understate the magnitude of the problem. To add a further layer of complexity, it would seem that these are not so much causes as symptoms--indicators of some other cause that drives so many members of our profession toward despair and the frantic search for relief from it.

My own view--informed by more than thirty years of interacting with practicing and aspiring lawyers--is that a primary cause of this despair is the absence of "fit" between (a) who the person is, at some deep and immutable level, and (b) what they are expected and required to do in their position within the  profession. A straightforward example may help: an individual who is ill at ease with conflict will be pretty miserable as a litigator, even if he or she is bright and hard-working enough to get the job done.

This is not to say that the individual should have chosen to be something other than a lawyer--although in particular instances that may be the case. To the contrary, a profession that includes so many different roles--big firm specialist or small town generalist, in-house advisor or public defender, patent analyst or estate planner, legislative drafter or child rights advocate--arguably has at least one place in it for almost everyone of good character and reasonable intellectual heft. Rather, it is to say that much of the despair that practicing lawyers experience may be attributable to a mismatch between the individual attorney and the space within the profession into which he or she has wandered.

I think there is some good news on this front. When I began practicing in 1984, there was very little lawyer mobility. A lawyer who moved from one firm to another or one segment of the profession to another was viewed with suspicion. The stigma attached to such shifts is largely a thing of the past.

Also, clinical and practice simulation courses in law schools help give students a clearer idea of how they might want to spend their time as a professional. Over the years, I have spoken with numerous students who thought they'd like to practice in a particular area--until they had the chance to test-drive that practice through a clinic, simulation, or internship. This sent them looking for alternatives and, in most cases in my experience, the student was able to find at least one that proved to be a better fit.

This is all well and good, but clearly more should and can be done. Here is one modest proposal.

From time to time, I teach a seminar at the University of Michigan Law School called Law & Theology. In the course, we try to determine whether there are lessons that lawyers, judges, and legal scholars can learn from the way that theologians think about things that (for lack of a better term) bedevil us as well. For example, theologians--like members of the legal profession--have to think about the proper approach to textual interpretation, the appropriate balance between justice and mercy, how we decide which people and documents have authority, the place of the poor of a system that may otherwise favor the rich, and so on and so on. In that course, we try to figure out how the wranglings of theologians with these issues can help and inform our own.

In the last class session, the students and I think together about the concept of "vocational discernment." This idea, which has a significant presence in many religious traditions, relates to the process by which an individual determines his or her place in the life of faith. Is the person called to be clergy? What kind of clergy--a local pastor, or a hospital chaplain, or a teacher in a religious school, or a music director? A lay leader? A follower? How does someone go about making such a decision? How will someone know if they've reached the right conclusion? Or is "knowing" even a reasonable aspiration? In many religious traditions, vocational discernment is a critical--even revered and essential--step toward deciding on a professional direction.

The discussion in this last class always leads us in many different directions. Toward the end of the conversation, though, every group of students reaches this conclusion: they wish they had engaged in this analysis and discussion earlier in their legal education--perhaps even before they had entered law school. With virtual unanimity, they conclude that taking vocational discernment seriously--and talking about it out loud--shed some helpful light on their path.

In my own view, this is one of the great unmet challenges of our profession: devising a program of vocational discernment for those who feel called to practice law. If done correctly, it would yield a happier and more fulfilled legal profession--and therefore better lawyers and better representation for their clients. After all, these things, too, are interconnected.

What would vocational discernment for prospective lawyers look like? How would it be conducted? Who would do it? What are the relevant questions for an aspiring lawyer to ask her- or himself? What can we realistically demand of and expect from such an undertaking?

As we say at the beginning of our own vocational discernment exercise: let the conversation begin.