The Impact of Speech

Dear LLS Community, During this academic year, conflicts revolving around speech have flared up across higher education, with the most prominent examples occurring in connection with the unfolding violence in Israel and Gaza. Sometimes the flashpoints are occasioned by members of the campus community, sometimes by invited guests; sometimes they arrive from more progressive points of view, sometimes more conservative; sometimes they are intended to enlighten, sometimes provoke, sometimes both. These events highlight a longstanding tension concerning the protection and regulation of speech on campus that is neither unique to this conflict nor rare among law schools. Abortion, affirmative action, policing, gender identity, and presidential elections—these are just a few of the topics where questions have been raised about when and how speech should be protected or limited.

As promised in my Welcome Back message at the beginning of this semester, I am writing to address questions about the protection and limits of speech on campus that have resurfaced with the events of this academic year. First, I share some of the more common questions and concerns that I’ve heard during this time. Next, I highlight relevant university and law school policies that address these questions. In short, university and law school policies are intended to encourage the kind of intellectual inquiry and exploration of diverse views essential to academic excellence and rigorous legal training, while also cultivating a safe and inclusive environment that allows all students to pursue their academic and co-curricular objectives without unreasonable obstruction or disruption.

While it is important to have clarity on the principles that establish the contours of speech protection, this merely establishes a floor for the kind of speech allowed. Our community should be driven by more than the minimal compliance with rules around the protection and limits of speech, and I have heard a shared desire for us to be able to have difficult conversations in ways that honor our values and mission. In addition to the encouragement of learning, Loyola Marymount University and Loyola Law School are concerned with the education of the whole person and promotion of justice. For these reasons, we believe it is essential to place the dignity of each person at the center of our concerns for justice and to affirm the humanity of others, even when we disagree about what justice requires in any particular context.

In the final part of this letter, I share ideas for how our community can navigate difficult conversations with these values in mind and provide information about three upcoming programs scheduled for the remaining Mondays in March after spring break. My hope is that this programming will enhance our capacity for compassionate dialogue around difficult topics, to both honor our values and facilitate the kind of engagement that builds understanding across difference.

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Your Concerns and Questions Many students, faculty, and staff have come to LMU Loyola Law School because of our mission to advance academic excellence while instilling a deep concern for social justice and striving to promote diversity, equity, and inclusion in every aspect of our work and community. Academic excellence requires encouragement of critical inquiry and the creation of a vibrant intellectual space for the articulation and testing of a diverse range of ideas. This includes not merely mainstream conceptions, but ideas that may be controversial or extreme, as well as those that challenge our most deeply held beliefs, norms, or institutional principles. Our focus on realworld impact means that many of our faculty, staff, and students are also putting their research and ideas into action—challenging existing institutions, systems, and powerful individuals through advocacy that seeks to identify and eliminate injustice, reshape law and policy, and advance legal protections to save lives, improve health, and secure essential freedoms.

It is precisely because of this desire to have an impact that our community is so actively engaged in many areas, including through organizing events and disseminating written information to inform and encourage action. It should not be surprising to see this engagement around events both at home and abroad, and I have heard from students, staff, and faculty about the importance of feeling protected when engaging in this kind of advocacy.

At the same time (and from many of the same people), I have heard concerns about how we are communicating our ideas to one another. Concerns have been raised about the emotional impact of speech that some find deeply offensive, as well as the risk that certain language may feed into a polarized and sensationalized societal narrative against groups that have been targeted for discrimination and violence. A related and more challenging aspect of speech is the meaning people may ascribe to the absence of certain information. This is especially so in messages that passionately advocate for a particular side in a conflict, without acknowledging the dignity, humanity, and rights of all people whose lives and well-being are at stake, or according to a certain group’s plight the understanding and empathy they believe is due.

Finally, I have heard concerns about how we react to speech with which we disagree. Many have lamented the use of social media to discourage speech through shaming, harassment or intimidation in broader society. And there is concern that this growing phenomenon threatens the principles of civility and respect that should govern our community and profession—principles reflected in our university policy and student codes of conduct, as well as law school curricular and co-curricular offerings preparing students to be effective and ethical advocates and leaders.

Underlying all these concerns is a foundational question about the proper role of an educational institution in protecting, limiting, and regulating the speech of its members, given the purpose of higher education generally and the specific mission and goals of a particular institution. For example, questions have arisen about how we should balance the protection and limits of speech considered offensive by some, in light of our commitments to diversity, antidiscrimination, and the creation of an equitable and inclusive learning environment for all. And questions have arisen about what message or viewpoint can or should be attributed to an institution when its community members express divergent views on sensitive or controversial matters.

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Speech Protection and Limits As LMU President Timothy Law Snyder explained in his November 2023 convocation address, protection for speech is essential because an important purpose of higher education is to “deepen and elevate our engagement” with difficult questions and problems in the world. Institutions of higher education should be places where we can “engage in open inquiry, challenge prevailing ideas, and explore diverse perspectives.” In legal education, protection of speech helps ensure the kind of intellectual engagement that equips our students and graduates to be critical thinkers willing to interrogate assumptions that shape the law in theory and in practice, and that gives them the tools to be effective counselors, advocates, and leaders. We are proud of the intellectual vibrancy of our campus, especially the engagement of our faculty, students, and staff with important and timely problems.

University and law school policies not only protect speech, but also seek to encourage free inquiry and free expression, which are core principles to the attainment of the mission and goals of Loyola Marymount University and Loyola Law School. The Policy on Academic Freedom focuses on the role of faculty, and the university and law school faculty handbooks incorporate principles of academic freedom articulated by the American Association of University Professors. The Freedom of Expression Policy1 focuses on community speech more broadly and especially the role of speech protections in student learning and other activities. It explains: Students will be exposed to varying points of view and it is inevitable that students will encounter others who think differently or those whose views they believe wrong or offensive.

The university setting is one that welcomes and promotes intellectual inquiry, vigorous and respectful civil discourse and the freedom of expression of diverse ideas and points of view.

Students are expected to respect the expressions of others, even when it makes them feel challenged or uncomfortable. It is within a civil and respectful community, like this University, that freedom of expression, debate and the exploration of competing views can best thrive.

Robust protection of speech requires recognizing the expression of controversial ideas and differing views as a vital part of discourse. Creating a space for divergent views to be expressed without fear of punishment is also important for realizing our goals of valuing diversity and inclusion. One of our strengths is the diversity of our students, staff, and faculty, and this diversity inevitably brings different perspectives on conflicts that may be deeply personal and politically controversial, especially where the human stakes of such conflict are high. Of course, because of this institutional commitment to protect the free expression of divergent views, any one member or group’s opinion should never be mistaken for an institutional endorsement of the particular view expressed by that individual or group.

At the same time, our policies on academic freedom and freedom of expression recognize important limits on this freedom, noting the importance of balancing freedom of speech with the “right of the members of the University Community to pursue their academic and co-curricular objectives without unreasonable obstruction or hindrance.” A professional school is not the The Freedom of Expression Policy, originally housed on the university student affairs site, is now also available at the LMU Loyola Law School Student Affairs Policies and Procedures page.

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public square; as just one example, exams are graded through an evaluation of speech based on its content, in a way that would be unacceptable in other contexts. There are important limits to the protection of speech, essential to maintaining a safe, equitable, and inclusive learning environment for all.

First, harassment, intimidation, incitement of illegal activity, and threats are not protected by federal or state law. Such conduct is also a violation of our student handbook code of conduct, including our prohibitions on discriminatory harassment and other forms of discrimination, subject to discipline. This prohibition includes enlisting others to harass, intimidate, or threaten speakers with whom one disagrees, such as through the widespread dissemination of personal information via social media, also known as doxxing.

Certainly, social media has become a popular communications tool and can be valuable in amplifying important messages that may not otherwise be heard, as well as making more visible discrimination or other harms that have been invisible to much of society. A troubling byproduct, however, is that it also facilitates the rapid dissemination of information (and too often misinformation) to people outside of our community who may not share our commitment to civility or be bound by our institutional rules. Social media has created opportunities for people to indirectly punish or chill speech that might otherwise be protected, by sharing information with those outside of our community who will harass and try to intimidate those with whom they disagree. We should find this concerning, especially as advocates (and aspiring lawyers) committed to a legal system that should ensure even the most vulnerable have a voice and that operates on the premise that vigorous representation of different perspectives helps us achieve a nonviolent resolution of conflict.

Second, our policies allow the law school to adopt time, place, and manner restrictions on speech that are reasonable and necessary for ensuring a conducive environment for learning for all students, free of disruption in and out of the classroom. For example, disruption of events or speakers—that is, the attempt to use speech to silence others or prevent others’ views from being heard—is not acceptable and is a violation of our code of conduct subject to discipline. Conduct that disrupts class would similarly violate our code of conduct. In creating time, place, and manner regulations of speech, we are guided by our mission to encourage critical academic inquiry and dialogue, and our student handbook and events policies provide multiple avenues for students to engage in activities on campus that advance important conversations, including by organizing events that may respond specifically to other speech believed to be offensive, wrong, or one-sided.

There may be times when it can be difficult to determine whether particular speech or conduct is a violation of university or law school policy, such as whether a message that one experiences as hurtful rises to the level of prohibited harassment or intimidation. The facts and circumstances of a particular incident matter a great deal here. There is a process for people to report incidents they believe violate the school code of conduct, so that we can investigate the allegation and determine an appropriate resolution. The following are essential resources that identify prohibited conduct, outline the process for reporting violations, and explain how to access other supportive services as needed. Community members should familiarize themselves with these resources:

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Important Resources found in the faculty and student handbooks, at the LMU Human Resources page, and at the Student Affairs Policies and Procedures page. This page includes a Statement of Nondiscrimination, the Discriminatory Harassment, Retaliation and Sexual and Interpersonal Misconduct Complaint Process, the Student and Interpersonal Misconduct Policy, and the Student Title IX Policy.

Student Handbooks found at the same page, which outline student Standards of Conduct and the applicable Disciplinary Code for violations.

Students must also comply with the Student Organizations Handbook, including the Events and Publicity policies contained therein.

Additional supports available to students can be found at the Student Affairs page on Wellness.

Navigating Difficult Conversations The university and law school policies above are intended to encourage the kind of intellectual inquiry and exploration of diverse views essential to academic excellence and rigorous legal training, while also cultivating a safe and inclusive environment that allows all students to pursue their academic and co-curricular objectives without unreasonable obstruction or disruption.

Subject to the limits noted above, this protection of speech allows the expression of ideas that may be viewed as controversial, extreme, or even offensive. For some, such protection for speech is viewed as in tension with the goals of creating a safe and inclusive environment for all.

But it is important to understand that a safe and inclusive environment is not one that presumes sameness of opinion or shields us from speech that is uncomfortable or difficult to hear. Indeed, lawyers are among the few types of professionals who are trained to navigate conflict and to routinely engage those with whom they disagree in order to find nonviolent resolution of that conflict. Creating an environment that shields us from discomfort would undermine our ability to develop these important skills, and being shielded from positions that we find offensive would undermine our ability to effectively advocate against the policies shaped by those very positions.

That said, we should not take lightly the emotional effects that hurtful or offensive ideas can have. Speech policies merely establish the outer contours of speech that is protected. We can strive to create a more supportive space for these difficult conversations, learning how to engage each other with empathy through effective and compassionate communication that is grounded in our values, mission, and training.

As a law school, we train future lawyers to think critically and counsel others, emphasizing the ability to listen, understand, and consider other perspectives as essential to good lawyering.

Equally important is the mission of the school to promote equity, inclusion, and social justice.

We do this by encouraging a more critical assessment of our existing systems, by helping to render visible the invisible inequities that challenge our own pre-existing assumptions about these systems and the people within them, and by facilitating a greater awareness of the implicit bias that exists within all of us.

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Certainly, this focus may deepen our frustration with existing inequity and injustice, making us less patient and a bit more passionate in our attempts to persuade others of our position. But shouldn’t these lessons in critical thinking and self-reflection instill a greater sense of humility about our own blind spots? Encourage us to slow down to avoid jumping to conclusions about a speaker’s intent too quickly? Make us more willing to offer grace to others that we would hope would be extended to us in the moments we fall short of the values to which we aspire, especially amid a conflict with deep humanitarian impact?

As President Snyder noted in his convocation address, “[t]he more we embrace a desire for mutual understanding and authentic care for other, the better we can navigate the current moment and uphold the values that define us.” As we exercise our freedom of speech in this moment, can we slow down to consider those members of our community who are currently in distress and feeling vulnerable, to consider how we can show them the sensitivity and compassion that one would ordinarily expect even as we engage in advocacy that we feel is important? And can we slow down to consider more carefully our own goals and intentions: Why are we speaking – what do we want to accomplish? Whom do we want to reach? Who might be hurt by our words, and is there a way to minimize the hurt without undermining the essence of our message? In fact, won’t that make it more likely that others can hear what we want to say?

In the same spirit, if members of our community make statements that anger us, that we feel are one-sided and seem to devalue the pain of others, are we able to take a moment to at least consider whether the speaker may have been operating from their own place of pain, distress, and fear? What hints does the speaker provide in their words, such as information about their own personal experience, that explain the sense of urgency they feel?

Many faculty already share techniques for engaging with others around difficult topics as part of the expectations they set for classroom discussion. For example, we encourage students to operate from a presumption of good faith, to listen to fellow students carefully, to restate the points they heard the other person make, to identify areas of common ground, and only then to explain how and why they disagree. I’ve witnessed students do this beautifully in the classroom, and the most productive meetings I’ve participated in with faculty and staff are ones where we follow this approach.

These examples show that our community already has important tools to have compassionate conversations—to listen to and empathize with each other in ways that honor the other person’s dignity and humanity. But we have more work to do. Even in communities like ours, where values of kindness, empathy, and support ordinarily shape our interactions, we may find it difficult to communicate with others we believe hold views fundamentally opposed to values that touch on the core of our identity or worth. This is particularly so when the contentious issue involves violence based on identity or affiliation, which can have reverberations that create intense vulnerability, sensitivity, or fear for people who share aspects of that identity or affiliation.

Our shared humanity should help us to recognize that we are all vulnerable to feeling deeply hurt by certain kinds of speech, and we are all vulnerable to the possibility that such hurt makes it that much more difficult to navigate disagreement consistent with our usual standards of civility and

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compassion. We are not always as resilient as we strive to be, and it can be extremely difficult to meet the heat of a difficult moment the way that we might envision our response in the abstract.

But it is precisely in these moments when we will need to strive to honor our values and build upon the foundational skills that we’ve honed—skills that make us effective listeners and facilitators who use empathy and creativity to find common ground across difference, and effective advocates who understand the importance of considering all sides of a problem in order to help find the best resolution to conflict.

In the coming months, we will offer programming to help strengthen our capacity for navigating difficult conversations, to enhance our understanding of the importance of seeking out opportunities to engage others with whom we disagree, and to provide greater context for the regulation of speech in education generally. We will begin with the following programs on the remaining three Mondays in March: •

On March 11, Paloma Bustos, MSW, and Ramona Merchan, DSW, MSW, LCSW, will help lay the foundation for understanding trauma and its impacts, trauma-informed skills and care, and self-regulation. Paloma is the Crime Survivor Services Program Manager of the Rise Clinic, and Ramona is the Executive Director of Trauma Informed LA and Project Director with the Los Angeles County Office of Child Protection.

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On March 18, Karen Stiller, Senior Director of Jewish Affairs at the Jewish Community Relations Council, and Maha Elgenaidi, Founder and Executive Director of the Islamic Networks Group, will join us for an interfaith panel to discuss the roots, history, and impact of antisemitism and Islamophobia on Jewish and Muslim communities here in the US and around the world.

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On March 25, constitutional law professor Justin Levitt will talk about the basics of First Amendment protections in the campus context.

At the beginning of the semester, I shared my hope that we would embrace a future that draws upon the tremendous strengths of this community to fortify our individual and collective resilience to inevitable challenge, while deepening our commitment to our values and mission.

Of course, this requires trust, understanding, and empathy for each other. My hope is that the upcoming March programming will enhance our capacity for compassionate dialogue around difficult topics, to both honor our values and facilitate the kind of engagement that builds understanding across difference. And I look forward to even more opportunities for us to come together for this common purpose.

Sincerely, Brietta R. Clark Interim Dean and Senior Vice President Appointed the next Fritz B. Burns Dean effective June 2024 Professor of Law and J. Rex Dibble Fellow

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