Dear Rising Lawyer / Scholar: Put Down Your Damn Phone

For several decades, law students, young lawyers, and aspiring legal scholars have come to my office, sent me e-mails, or called me to ask for advice about their careers.

I am always moved, humbled, and not a little surprised by their confidence in the possibility that I might have something useful to say. So I try my best to help them.

Over the years, I have talked about the limitations on what they can plan and the role of serendipity, the importance of choosing a path that aligns with their values and identity, the competing appeals of various legal markets and career segments, the rewards and frustrations of academe, the challenges of simultaneously teaching and maintaining an active practice, my views on promising directions for intellectual inquiry, and so on and so on.

But for those who come to seek my advice this year I will start with this: put down your damn phone.

Over the past few years, I have watched as a new lawyer--given the opportunity to moderate a panel at an important conference--began incessantly checking her phone as soon as someone else began speaking.

I have watched as a brand new associate felt compelled to check her phone "subtly" while a senior partner was giving her an assignment (thankfully, this was not an associate at my firm).

I have watched as young scholars, standing in a circle of their seniors, could not resist looking at their phones while a leading figure in their field was in mid-sentence.

I increasingly find myself on the receiving end of this conduct. Not too long ago, I was engaged in a conversation with a young scholar whose career I have worked to advance. In the midst of our discussion, she stared down at her phone, began typing on it, turned, and wandered off.

Or there was the time in a small seminar--one with competitive enrollment and a long waiting list, in part because it tends to draw students interested in a field where I often can help them make connections--when I noticed that the young man sitting right next to me was responding to a text.

Raise your hand if you've seen the same sort of thing. Thank you.

Raise your hand if you've ever done something like this. Thank you. Me, too.

Now, permit me to anticipate a few objections before I proceed.

First, I fully understand the current professional and social demands for connectivity. I serve clients (primarily media entities and universities) who often turn to me for help with emergencies. My fields of practice and scholarship require a close and timely familiarity with current events as they unfold. The overwhelming majority of my family members and friends are online constantly. So I come to you with both the sympathy and the zeal of the reformed addict: I have myself fallen into these sorts of behaviors, even if not quite so extreme.

Second, special circumstances do sometimes require you to watch your phone carefully even when you're doing other things. This is easily addressed by saying something to people it might offend like: "Sorry to be watching my phone, but I'm dealing with an emergency." That special circumstances will occasionally arise does not excuse us from trying to deal with them politely. Nor does it give us license to obsess constantly over our phones as though we were monitoring the deployment of the nuclear codes.

Third, I do know some people whose jobs require the sort of constant vigilance I am describing--physicians who are on call; in-house lawyers who have to be available to clients 24/7; and so on. But the people I know who fit this description are unfailingly polite about it. And the reality is that many more people think they have these sorts of roles than actually do.

Fourth, I recognize that young lawyers and scholars do not have a monopoly here. In part, I know this because of my own failings. But I also know it because of what I see senior law partners and established academics do from time to time.

To take just one example, someone I know, who has been a lucrative client for Lawyer A, told me that to handle the biggest deal of his company's existence he had decided to shift his business to Lawyer B (at a different firm). He had come to feel that Lawyer A had more interest in his phone and his computer screen than he did in his clients.

Nevertheless, in my experience this generation of rising lawyers and scholars is much more likely to engage in this sort of conduct, particularly the most extreme versions of it.

Fifth, I acknowledge that the present generation has greater tolerance for this sort of thing and that I am, to some degree, imposing an old etiquette on a new breed. But I believe there are limitations to this argument. When the students in my seminar realized what their classmate was doing, a look of horror came across their faces as well. And I do not believe for a minute that the students who come to my office to talk to me will feel respected, welcomed, and heard if while they are talking I am playing with my phone and saying "go ahead, I'm listening." No I'm not; not really; and they know it.

Put. Down. Your. Damn. Phone.

Why?

Several reasons.

First, you are being rude. You are clearly and unmistakably conveying that whatever is being said is of secondary importance, that there is something more interesting going on elsewhere, and that you have accordingly directed your attention to that other place. I have resolved never again to do this to another human being. And I have resolved that the next time someone does this to me I will simply walk away; after all, if you can walk away intellectually then I feel justified in walking away physically.

Second, you are being stupid. The primary characteristic of all of the smartest people I know is their engagement--they listen carefully, which allows them to process what they hear critically, which allows them to respond thoughtfully. Maybe someday I will encounter someone who has detoured his attention off to his phone but who then looks up and says something brilliant, but it hasn't happened yet and I have good reasons for skepticism.

Further, and more superficially, I don't happen to think that anyone looks particularly smart when they are obsessing over their phone. Consider the common phone-checking posture: hunched over, brow furrowed, mouth hanging open. Perhaps it's just me, but here's what doesn't fly through my mind: now there's someone who I'll bet has something interesting to say!

Third, you are missing opportunities. A while back I was at an event attended by both newer scholars and more senior ones. Afterwards, a senior attendee told me that one of his conversations had led to an exciting new project. Perhaps this opportunity came his way because of his status as an established leader in the field. But it strikes me as the sort of work that is at least equally well suited to a newer scholar. And I will note that every time I saw him at the event he was talking with someone, making eye contact, and fully occupied by what they were saying.

For an entire day, I never saw him look at his phone. Not. Once. I can feel an entire universe of aspiring lawyers and scholars shuddering at the thought--and I shudder a bit myself. But, of course, this does not mean he didn't do it. It just means he figured out ways to do it that didn't make him look rude and stupid.

Offering unsolicited guidance is tricky stuff. I always think of the story about the grade school student who submitted the essay on Socrates that said: "He went around giving advice to people. They killed him." And guidance may not much impress people when it comes from a confessed repeat offender.

So I throw these observations out there for what they are worth, understanding that some aspiring lawyers and scholars will not find them sufficiently worthwhile to distract them from the latest text. Fine; I get it.

But I will say this.

For several decades, I have been advising and mentoring aspiring lawyers and scholars. Many of them have gone on to have immensely successful careers--as managing partners at leading law firms, heads of their own businesses, tenured professors, federal judges, United States Attorneys, and so on.

I like to think that, over time, I have acquired a very good eye for talent. And, although I'm not much of a gambler, I also like to think that I have a pretty good instinctual sense for how the odds tend to play out.

My money is on the people who put their damn phones down.

Free Speech Problems and the Critical Pause

     In his influential work Free Speech and Its Relation to Self-Government (1948), Alexander Meiklejohn wrote:

"To be afraid of ideas, any idea, is to be unfit for self-government. Any such suppression of ideas about the common good, the First Amendment condemns with its absolute disapproval. The freedom of ideas shall not be abridged."

     This statement comes to us as a canonical declaration of sorts. It is an often quoted expression of absolute principle by a revered philosopher, educator, and proponent of free speech.

     I most recently ran across this statement shortly after the events in Charlottesville. It affected me differently than it has before and I noticed several problems embedded within it that I had previously read past and that I think are deeply instructive to our current situation.

     As an initial matter, Meiklejohn seems to equate the fear of speech with the desire to suppress it, even though the latter does not necessarily follow from the former. It is one thing to think that an idea has fearful implications or may have fearful consequences, and another thing to believe that the law should therefore prohibit its expression.

     More fundamentally, though, it seems to me odd--and inconsistent with the realities of human nature--to proclaim that fear is off limits because it renders us incapable of participating productively in the democratic process. I can be both fearful and rational. And I can be afraid of ideas without softening to tyranny.

     Furthermore, it can be argued that Meiklejohn advocates here for just another form of censorship. This passage sounds like yet another remote voice telling us what we are allowed to believe and internally experience. I do not understand why forbidding an emotion is less offensive than forbidding the expression of it. 

     I also hear in Meiklejohn's statement the voice of privilege: "you must not be afraid, those of you who have reason to fear." It is easy to say such things if you stand outside the group targeted by the fear-inducing speech. The courage of the unthreatened is cheap courage.

     Reading this passage afresh reminded me of the cautionary note Dietrich Bonhoeffer sounded with respect to the theological concept of grace. Bonhoeffer warned against the forgiveness that we generously bestow upon ourselves with no expectation of anything like real sacrifice or genuine repentance. True grace, Bonhoeffer argued, comes with a cost.

     Saying "never be afraid of any idea" therefore seems to me twice wrong. Like saying "never be afraid of fire" or "never be afraid of surgery," it ignores the possibility of rational concern over real risk. And it disregards the emotional realities of those who may be different from us and whose fears require real courage to surmount.

     This is not to say that Meiklejohn's famous injunction is useless. To the contrary, as Kwame Anthony Appiah discusses in his recent book As If, philosophers have recognized that "untruths" can be useful to our thinking. Similarly, the law finds utility in "legal fictions"--concepts that we adopt not because they are true but because treating them as if they were true yields doctrinally desirable results.

     First Amendment law makes use of a number of legal fictions. One of the most important is Holmes's famous "marketplace of ideas" model, which maintains that in a free and open exchange of ideas the good ones will prevail over the bad. Of course, as an empirical matter we know that it often does not work out this way--as the realist Holmes understood. Indeed, as I have written elsewhere, we might well conclude that somewhere in the course of the 2016 election cycle the marketplace of ideas crashed.

     One of the problems with such untruths and fictions is that they become ingrained in our thinking and we move to them too quickly. We do not hesitate to acknowledge candidly that they rest upon a proposition that we know is often, or maybe even always, false. We do not pause to recognize that all such thinking comes at a cost--and we do not take time to listen to those from whom that cost is extracted. I will call this the "critical pause"--critical both in the sense of being important and in the sense of entailing careful analysis and questioning.  

     With these thoughts in mind, let me return to Charlottesville. After the events there, those who experienced fear about the ideas being expressed were met with responses that went very quickly to our useful untruths and legal fictions.

     "Do not worry about ideas," they were told, "other, better ideas will win out over them." This a hard fiction for people to accept when they have reasons to think otherwise.

     "Do not worry about ideas," they were told, "worry about your fear, because the only thing you have to fear is fear itself." This, too, is just another useful untruth--even if a rhetorically powerful one. Yes, fear can lead us to do terrible and irrational things; but, surely, we call all admit that it is not the only thing we have to fear.

     I think that these responses generally came from well-meaning people speaking in good faith. But I believe that many of them missed that critical pause--the moment where you acknowledge that the fear being experienced by others is real, legitimate, rational, and important. And, again, every useful untruth comes at a cost, and the failure to pause and to recognize and weigh that cost is not just unfeeling--it is sloppy thinking.

     Many of our great universities have recognized the importance of the critical pause. When a hateful event occurs on campus, they issue empathic statements and take supportive actions directed toward the affected communities. In other words, when hateful speech gets aired, these universities turn first to the reactions of those who were targeted by it.

     Great universities do not simply shrug and command people to be unafraid, or tell them they have nothing to fear but fear itself, or offer up false assurances about how good ideas will always prevail over bad ones. Rather, they take the critical pause to think first about the cost at which those potentially useful untruths come. They do so out of respect for those who are called upon to have real courage at real cost. And they do so because forgoing the critical pause is precisely  the sort of superficial and unreflective thinking that great universities reject.

     When universities take the critical pause they are often condemned for it. They are accused of coddling students, of cultivating snowflakes, of manufacturing unrealistically safe spaces, and of being antagonistic to free speech. This is, of course, wrong on multiple fronts. To say that the fear of ideas is the same thing as the desire to repress them is to make the same mistake that Meiklejohn made. To assume that fear is always irrational and is itself the most fearful thing we face is to ignore reality. And to disregard the fact that useful untruths are--while useful--still untrue is to embrace an extravagant illusion.

     Sound free speech arguments can rest upon the proposition that we should behave as if we were unafraid and as if the marketplace of ideas always worked. But arguments that fail to take the critical pause in this analysis will hold little appeal for those who are burdened by the cost of those fictions. On the other hand, acknowledging the existence of emotional realities comes with no cost to free expression. To the contrary, it seems to me the necessary predicate for a respectful and inclusive conversation about this subject--as for every other subject under the sun.