Law, Morality, Social Issues, and Charlottesville

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Carey Law hosts dialogue for faculty and students on issues raised by the recent events in Charlottesville, Va.

Fri Aug 25, 2017

“Why did we end up where we ended up?” University of Maryland Francis King Carey School of Law Dean Donald B. Tobin, JD, asked students and faculty gathered to discuss recent protests and violence in Charlottesville, Va. “And how do we deal with this tension that’s being produced by this really horrible vitriol that’s coming out, and the rights of people to do that?”

Tobin invited the law school community to the open forum in the school’s Ceremonial Moot Court Room on Aug. 24 to “express concerns, ask questions, or just listen,” with a promise to host additional gatherings throughout the fall and spring semesters.

Not unexpectedly, much of the discussion among the 50 or so attendees centered on the nature and limits of constitutionally protected speech.

“The level of hatred cannot be described,” recalled one third-year law student who said he had participated in the counterprotest in Charlottesville. “In my analysis, there is no room for First Amendment discussion when it comes to this.”

A classmate who did not observe the protests directly but watched extensive video of the event echoed his view. “What I saw wasn’t speech,” he said. The student, who identified himself as Jewish, added, “To me, a Nazi flag is in and of itself an incitement to violence. It is advocating the view that Jews should be exterminated.”

Others, like Carey Law Professor and University System of Maryland Regents' Professor Mark A. Graber, JD, PhD, expressed concerns about the complexities and potential for unintended consequences in imposing greater limits on speech. “What does make our participatory democracy work? What’s the notion of free speech?” he asked.

Graber, a constitutional scholar and author of the widely cited book, Transforming Free Speech, The Ambiguous Legacy of Civil Libertarianism, offered the cautionary historical example of Germany in the 1920s, when efforts to legally constrain hate-based political activism backfired. “For example, the Weimar Republic, they banned the Nazi Party. That was obviously not very effective,” he said.

Professor Frank Pasquale, JD, offered an evolutionary approach, referencing the work of colleague Danielle Keats Citron, JD. “As we go forward, we can talk together and we can think about how we update the First Amendment doctrine so we’re not stuck in this sort of First Amendment fundamentalist past,” he said. “I think a lot of people would say, 'Oh, if someone calls you terrible names on the Internet based on your race, that’s their free speech.' But what Professor Citron did is, she said, ‘Well, let’s reconceptualize this the way we reconceptualized sexual harassment.’ In the '70s and '80s, maybe that was conceptualized as free speech.”

Another main theme of the discussion was the role of the law school and the University community in confronting the issues raised by the Charlottesville protests and preparing students for their future roles in a changing legal and ethical environment.

“What is our obligation as a community to stand up, going forward, stand up against this type of hatred?” asked a first-year law student.

“I do think that in society we had sort of a lid on some of the hatred, that people may have had these feelings, but that we had a social construct that at least attempted to keep them down,” Tobin replied. “Now we’ve ripped off the lid.”

“From a legal education standpoint, I think that we’re in a new world in these last three to four years where a lot is happening all the time, so I want to be responsive to that in ways that are helpful and productive,” Tobin said. “The question is, how do you want to use the tools that you’re learning in law school?”

Two upcoming events in this series of discussions have been announced. On Aug. 31 at 3:15 p.m., professor Iyiola Solanke, senior lecturer at the University of Leeds and visiting professor of law at Wake Forest University, will discuss with law students and faculty her book, Discrimination as Stigma – A Theory of Anti-Discrimination Law.

And Sept. 25 at noon, Carey Law professors Larry Gibson, LLB, and Garrett Power, LLB, will speak about the historical background of Confederate monuments in Baltimore and the history of residential racial segregation in Baltimore.