We recently discussed the controversy at Emory Law Journal over the decision to withdraw an offer of publication for an article after a law professor refused to make substantial changes to content discussing race issues that the editors found “hurtful and unnecessarily divisive.” Now the school is embroiled in another free speech controversy after the Student Bar Association (SBA) denied recognition for a free speech group in part out of concern over the “potential and real harm that could result from these discussions[.]”

The denial has been challenged by the Foundation for Individual Rights (FIRE), which is calling on the school to reconsider the decision. However, the school declined to respond to its initial letter.

The SBA informed the group that it was concerned that there was too much overlap with other groups like the Federalist Society and the American Constitution Society. However, the listing of the over 60 groups at the law school shows considerable overlap of subjects. Indeed, a free speech group can work as an umbrella organization with other groups in creating forums for discussions.

The SBA also objected to the failure to use moderators to control such discussions. It added that it was “hesitant to issue a charter when there are no apparent safeguards in place to prevent potential and real harm that could result from these discussions[.]”

None of those objections seem particularly compelling. The Emory Free Speech Forum (EFSF) is a non-partisan student group “devoted to fostering critical discourse and open dialogue surrounding important issues in law and society.” However, the EFSF members said that, during the meeting on their request for recognition, some SBA members criticized not just its mission but its ideology and the proposed speakers.

The rejection letter that followed seemed a rationalization of the bias reported by the students. The SBA declared that it “fail[ed] to see a need for this particular club to be chartered and subsequently funded by SBA.” However, individuals in the majority often fail to see the need for groups seeking forums for greater free speech. As FIRE noted in its letter, the SBA ironically cited the “well-established promotion of free speech values across Emory schools” created by its “Respect for Open Expression Policy” and “Open Expression Initiatives” as proof that there really is no need for a free speech group on campus. That circular logic suggests that, once free speech is recognized, there is less of a need to recognize free speech groups.

However, the greatest concerns were raised by the reference to the potential danger in allowing a free speech group since it “will likely give rise to a precarious environment – one where the conversation might very easily devolve.” The SBA made specific reference to controversial subjects that the groups would like to discuss as potentially harmful to the community, insisting that “it is disingenuous to suggest that certain topics of discussion you considered, such as race and gender, can be pondered and debated in a relaxed atmosphere when these issues directly affect and harm your peers’ lives in demonstrable and quantitative ways.”

The last line strips away the prior rationalization of the decision to expose content-based discrimination of this group. This group is not required to guarantee that it will preserve a “relaxed atmosphere” but rather a respectful and civil atmosphere. The group wants to discuss the divisive issues of these days. It should not be prevented from doing so because those topics “directly affect and harm … peers’ lives in demonstrable and quantitative ways.” Indeed, that is the purpose of such forums — to discuss issues that impact lives in demonstrable and quantitative ways.

Emory University’s “Respect for Open Expression Policy” affirms:

As a community of scholars, Emory University is committed to an environment where open expression of ideas is valued, promoted, and encouraged. Recognizing that the educational process of our institution requires diverse forms of open expression – including freedom of thought, inquiry, speech, activism, and assembly – the university affirms the rights of members of the community to assemble and demonstrate peaceably within the limits of this policy. The university must simultaneously maintain the right of community members to pursue their day-to-day activities and to be protected from physical injury or property damage.

It is hard to protect “these freedoms of thought, inquiry, speech, and assembly,” when you are barring free speech groups seeking to express free thought and inquiry. The countervailing need to protect people “from physical injury or property damage” is an obligation of all schools to maintain a safe campus while guaranteeing such free speech rights.

Referring to “potential and real harm” is not some talisman that removes obligations to respect free speech rights. It is common for censors and speech regulators to act in the name of protecting people from potentially harmful or disruptive ideas. Moreover, it is the conduct of this group — not third parties who might protest its events — that is the measure of its fitness for recognition. These groups succeed or fail based on the interest and support of other students. Free speech has its own corrective element. The solution to any bad speech is better speech.

It is not enough to simply say that this is a “student decision.” We have recently discussed how SBA members, student petitions, and student groups have attacked free speech rights. Schools cannot just out-source free speech to students and allow them to deny this essential right to others. The school has an obligation, as stated in its policy, to guarantee the exercise of such free speech rights. Student governance is no license for student discrimination in the free speech area.

We have previously discussed the concern that the anti-speech movement rising in our universities has reached our law schools, where free speech is ideally taught as a defining right of our constitutional system. If we cannot hold the line on free speech in our law schools, there is little hope that we can do so in other schools.

There is a petition for Emory Law Dean Mary Anne Bobinski to intervene in the controversy. Emory has not been a school viewed as speech intolerant and has earned a “green light” from FIRE. It should reaffirm its excellent free speech policy and reexamine the basis (and possible bias) underlying this decision.