Wednesday, September 27, 2017

AG Sessions invited to talk about "free speech" (but not kneeling NFL players!) at Georgetown Law...

...but only to friends of Georgetown law professor Randy Barnett, with pre-screened questions.  Other Georgetown law faculty and students aren't happy.

UPDATE:  Various folks have sent me Prof. Barnett's lengthy explanation of the event and what actually transpired; it is below the fold for those who are interested:

The idea for this event originated with the DOJ who asked if the Center was willing to host a major policy address by the Attorney General on the subject of campus free speech. I agreed. Other than visiting the site to view the rooms, DOJ sought no further input into the planning process and were content to rely on my judgment. Our choice of the Hart Auditorium was somewhat compelled by their last minute commitment--late last week--to Tuesday's date. 


I informed DOJ that Georgetown University required there to be a question and answer session, but that we would follow our normal approach when Justices are visiting to have student questions submitted in writing and for someone--in this case me--to screen the questions. This is the procedure I have used for both of Justice Scalia's visits that the Center previously sponsored without any complaints. (I am told this procedure was also used when Justice Ginsburg appeared last week, but because I was not invited to that event, which was restricted to 1Ls only, I did not attend to witness this.) The DOJ had no objections to a question period, or to this procedure. Given that the event had to end at 12:40 pm so the AG could attend a luncheon he was hosting, at my request, they trimmed his speech a bit to allow adequate time for questions. (More on the questions below.)


The decisions to make this event by-invitation-only (as I am told was the case when Attorney General Holder spoke at GULC), and whom to invite, then, was entirely mine, though our Program Director kept DOJ informed of my decisions. When I learned of the more widespread interest in hearing the remarks, I asked that our event be simulcast for the benefit of any students and faculty who wished to hear the speech. So any faculty or student desiring to hear the talk in real time had that opportunity (as did viewers of CSPAN and CNN, which carried the event live in its entirety).


Because I did not want a speaker at an event the Center was hosting to be 'made as uncomfortable as possible,' and because I knew others in the community felt otherwise, I chose to limit attendance to the email list of 200-300 students who had attended previous Center events. Our speakers and subject matters are politically diverse, as are our attendees. For example, Brad Snyder and Mike Seidman were our first speakers of the year last week to discuss Brad's book on the Progressives. Next Monday evening, NYU law professor Barry Friedman will discuss his new book Unwarranted: Policing Without Permission. The students on our list had provided their email addresses to be notified of future events. And, if they attend 3 of our events they are designated a "fellow" of the Center and invited to our annual Salmon Chase Distinguished Lecture at the Supreme Court, which is hosted by a Justice and cosponsored by the Supreme Court Historical Society. (This year's lecture by Penn law professor William Ewald will be on the career of Justice James Wilson. Previous Chase Lectures have celebrated the 150th Anniversary of Salmon Chase becoming Chief Justice (by historian James Oakes); the 150th anniversary of the adoption of the 13th Amendment (by historian Eric Foner); and the 225th anniversary of the adoption of the Bill of Rights. (by political science professor Colleen Sheehan)) As many as 75 GULC students have attended the lecture in a given year.


To these students, I added my 85 Con Law II and seminar students, who are are also politically diverse. By electing to enroll in my classes, I believed these 2Ls and 3Ls had demonstrated their openness to hearing views with which they may disagree. And of course all of our current Faculty Scholars were invited, which is another politically diverse group. 


I should note that seven invited students--including some of my current ones--came in BLM t-shirts and sat together. I personally went up to their row before the event to thank them for coming. They in turn thanked me for inviting them. After the AG had completed his speech, but before the question period, they rose, silently put tape over their mouths, and then sat down. The event was in no way disrupted by their dignified expressive actions, but I assume the Attorney General saw them do so. 


The invitation solicited written questions for the Attorney General from the students. I identified three (asked in varying forms by upwards of 10 students) that concerned the freedom of speech, though none concerned the topic of campus speech. I was able to ask all three:

  1. Can you comment on the recent debate over NFL player protests. As attorney general, does it concern you that these players are being condemned by many, including the President, for exercising their constitutional rights to free speech and protest?
  2. If the methods citizens have thus far employed to register objection to policies, practices, and situations are unsuitable and divisive in the administration's eyes, what can citizens do to “properly” register their opinions?
  3. As an advocate of free speech, how do you feel about the use of Senate Rule 19 to limit speech on the Senate floor during confirmation hearings, as was done to Senator Warren when she was criticizing your nomination to be Attorney General? 

To these I added four of my own: 

  1. How much does context matter here? Are those whose viewpoints are in the minority in a particular community–such as a college campus–in need of any special protections? Will this be a factor that the DOJ will take into account when setting its policies?
  2. Can you describe your experience as a student expressing a minority political viewpoint on campus when, as an undergraduate at Huntingdon College in Montgomery, Alabama in the 1960s, you helped form a student Republican club to campaign against Governor George Wallace?
  3. Can you tell us more about the statement of interest you filed today in a campus speech case, which you mentioned in your remarks?
  4. Finally, there are many faculty and students protesting outside this auditorium or watching remotely by simulcast. Do you have any message you wish to address to them?

Our time then expired.


To my knowledge, no students were intentionally "disinvited" from the event. The students who were not permitted to attend had never been invited in the first place. Instead, someone posted to the Georgetown Law Student Facebook page the RSVP link contained in the emails that were sent to invited students. (Apparently, it was a technical glitch that allowed this link to work, but I am not sure of this.) The student Facebook page provided no notice to students who clicked on link that the event was by invitation only and that the invitations were not transferable--though this information was, I am told, contained in the original email from which this unknown person took the link. 


Having discovered what was happening, the administration informed me that these uninvited students were being notified that they could not attend the event. (Although I was informed of this after it had happened, I fully supported the decision.) In addition, a handful of of my students who had been invited were inadvertently told they could not attend. This was corrected when these students contacted me to let me know and I told staff. I should stress that all this was being done by staff under very short time considerations the evening before the event, and they worked on this matter well into the night. 


Those students who were informed they could not attend were in no way "screened" for their viewpoints--which staff had no way of knowing--and I know they included members of the Federalist Society because one member wrote to apologize for having registered by using the Facebook page link. He asked if he could attend, but I told him he could not.


My apologies for the length of this message, but it seemed best to address all the "process" questions about the event of which I am aware in one message. Of course, any information which was provided to me by others could be inaccurate. But this is my best understanding of the sequence of events.

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