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The ABA Journal’s Aug. 7 Your Voice piece, “Conservative student says law school biases infringe on his right to free speech,” by Gonzaga University School of Law student Austin Phelps, has kept the conversation going after lively responses to Gonzaga Professor Jeffrey Omari’s first column on free speech, racism and the MAGA hat in July. Below is a sampling of reader responses to Phelps’ and Omari’s columns.

Justice William O. Douglas, in his Brandenburg concurrence, quoted Justice Holmes’ dissent from Gitlow v. New York:

“Every idea is an incitement. It offers itself for belief, and if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.”

We frequently debate the line between what is free speech and constitutes incitement. Each person is entitled to their opinion, and the rights of free speech and expression allow them as such. But we must recognize the different speech and different ways to express oneself that can be weaponized to incite hate, violence and division among the country. This is something that has stemmed over into the law school community, particularly the law school I attend. In Tinker v. Des Moines it’s held that speech is acceptable in the class as long as it does not “materially and substantially” disrupt the classroom.

This was in response to protests, but we have to ask ourselves: Does wearing a MAGA hat or other politically charged clothing for the sake of expression equate to disruptive protest, just by simply wearing it? Did the student intend to disrupt the classroom? Or does the need for decorum in law school classrooms outweigh that right?

I think it’s dangerous to limit a student’s freedoms of speech and expression in the classroom, especially if they have no intent to do so. In criminal law, we often require both an action and an intent in order for something to be a crime. Why can’t we apply such a thing to what violates the protections offered to our speech and expressions in the classroom? These are the things that I think we need to discuss to prevent infringing upon a student’s rights.

The professional world is another matter. I have had many a conversation with Dr. Omari, as a student at the same law school, and with Mr. Phelps, as a co-worker at the same internship. I stand with Dr. Omari and the organization’s supervisors on the matter of Mr. Phelps’ chastisement for wearing his shirt at the workplace. We, as a community, have to hold ourselves to a professional level and keep an unbiased view for our clients. We are not to let our personal beliefs interfere with our work, and we need to recognize that our clients expect us to look at the facts and work toward a good outcome for their case, whoever they are or whatever their beliefs are. Wearing politically charged clothing can be a bad business model, as it can send prospective clients away from us. For instance, the organization Mr. Phelps and I work for is starting an immigration law program in two weeks. Wearing such a shirt like “#BuildTheWall” would send those clients running away from us, making us appear biased against them and unprofessional. We must hold ourselves to that professional standard in order to provide the best service and gain the trust of our clients.

Alexander Medina
2L at Gonzaga University School of Law

Thank you for publishing this article. Efforts to silence or “shame” conservative voices, especially in higher education, must not be condoned by the legal profession. The marketplace of ideas at the core of American discourse is a free one.

Moura Robertson

Austin Phelps asserts in his article that his wearing a MAGA hat is no more than expressing his support for conservative values. I’m sure that he is quite earnest in his belief. Unfortunately, MAGA is no longer just a political slogan. It now stands for something darker: the terrorizing of the Latino community. To say that displaying MAGA, or any similar slogan like #buildthewall is simply political speech is naïve. It would be like saying displaying a swastika in Nazi Germany was just expressing support for the belief in political principles. It was not. It was an act of terror, even for those Germans who simply supported the Nazis because they believed in their political goals. You can no longer ignore the real-world effects of the “MAGA” agenda. Children are being ripped from their families. Innocent people are being slaughtered by “MAGA” true believers. Wearing any shirt that espouses support for a terror campaign is not political speech. It is provocation. It has no place in a classroom or an internship.

Michelle Van Der Karr
2L at The John Marshall Law School

I recently read your article by Austin Phelps on the topic of political bias in law school. In response to Mr. Phelps’ article, I share his sentiment that some professors can certainly lead their classes in such a way that open conversation feels stifled and that certain political viewpoints are favored over another.

I had two instances that really rattled my confidence in my law school that reflect Mr. Phelps’ experience. In my constitutional law class, taught by a well-respected woman who had experience before the Supreme Court, we discussed D.C. v. Heller. I raised the point that D.C. v. Heller does not really get to the issue of gun violence, as it claims to in the opinion, because it does not account for gun violence perpetrated by people with unlicensed or secondhand weapons, or weapons with obliterated serial numbers. I assumed this to be a comment devoid of political implications, as I just wanted to ensure we were adequately appreciating all facets of a complicated issue. My professor’s response was to make a scoffing noise in front of my section and tell me I was clearly “anti-Constitution” and against the Supreme Court. For a first-year law student, such an experience is incredibly demoralizing, and I learned my lesson to stop volunteering in that class.

In my last year of law school, in an advanced criminal procedure class, I had an instance where my professor asked the class to review a case that included an opinion written by Justice Thomas of the Supreme Court. As the class debated the merits of the case and the justices’ viewpoints, the professor finally declared that she thought Justice Thomas to be “retarded.” I found it incredibly disrespectful to people of color, to the Supreme Court and to those with learning disabilities. Unfortunately, this opened the door for other students to critique Thomas, less on the basis of his legal reasoning and more for his identity and his politics. I reported the instance to the law school, but unfortunately found that it was not addressed.

The law school system is unfortunately filled with a lot of antiquated learning methodologies, and while we routinely hear and discuss complex, sensitive problems in the real world, we don’t often have the tools to have discussions that encapsulate many perspectives. It can be very jarring to find that honest and open debate is second to the unassailable opinion of a professor standing behind a podium. Unless and until we challenge these systems, we are educating a generation of lawyers who won’t know how to disagree respectfully and won’t know how to engage in the fundamental skills of our profession: advocacy and persuasion.

Katherine Brooke Fiallo

I found both articles to be very interesting, albeit for different reasons. One author understands the reality of the situation. The other seems to think a dress code at a private law school implicates the First Amendment.

Professor Omari wrote an article reflecting upon his acquiescence of the situation. Mr. Phelps claims he was castigated by the faculty. The faculty merely discussed their misgivings of a future attorney donning a T-shirt with charged slogans in a professional legal setting.

Mr. Phelps knew wearing clothing with a charged slogan in a legal setting was unprofessional—he brought a jacket to cover up his T-shirt. Yet, Mr. Phelps was surprised when a supervising attorney expressed reservations. Mr. Phelps should have seen this meeting as one of the many lessons learned while working under a supervising attorney.

What harm is Mr. Phelps alleging? He wouldn’t be able to wear such clothing in a courtroom or in the vast majority of law firms. Students of this private university can still wear MAGA hats to class. The only harm alleged appears to be embarrassment and an unsubstantiated claim that Professor Omari bases his in-class call system (again, at a private university) on the political leanings of students.

Mr. Phelps’ article is little more than an attempt to place blame for societal attitudes towards conservatism on law school faculty.

Stephen Hayden
3L at Southern Illinois University School of Law

OK—I disagree with most of what I perceive President Trump to stand for and think him to be a cancer on the Republican party and an embarrassment to our nation. Having thus established my progressive bona fides, I must go on to applaud Mr. Phelps’ reasoning and nonhistrionic defense of his right to think what he wants and to portray those thoughts on the cap and T-shirt of his choice. Too often, progressives are so convinced of their own rectitude that they feel justified in actively suppressing viewpoints that differ from their own.

As someone who is descended from brave immigrants who came here to make their descendants’ lives better and who believes that each of us has the duty to use our blessings to lift those around us, my politics tend toward the progressive. But I also hold deeply felt beliefs and values about faith, family and morality. Those latter beliefs and values are too often dismissed by “progressives” as based in prejudice and superstition, and therefore unworthy of expression in polite company. So long as such contempt is the main attitude such “progressives” bring to their encounters with people who hold such beliefs and values, they will not succeed in winning anyone’s heart or mind for the policies they espouse.

There is nothing illegitimate about challenging a law student’s beliefs and expecting them to be able to present a reasoned and articulate defense of them—anyone who can’t do that by their third year of law school and sixth or seventh year of university education has probably wasted a lot of tuition money. But that is different than suppressing differing views, or more fundamentally, simply writing them off as too wrong to be worthy of the tolerance “progressives” expect and preach.

Dan Curriden

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