Friday, September 17, 2021

Speech and Role Morality

 by Michael C. Dorf

On Monday, Professor Colb reported on a recent discussion hosted by Cornell Law School featuring Professors Cornel West and Robbie George. In answering some comments by one reader, I offered some further support for the main essay's criticism of the analogy Professor George drew between private attorney general statutes in the environmental and other contexts, on one hand, and the deputizing of private parties by SB8, the Texas abortion statute. In a future essay, I might elaborate further on my somewhat cryptic comments and also dive deeper into the legitimate and illegitimate grounds that lawmakers have for enlisting private parties in enforcing public (and other) obligations. In today's essay, however, I want to turn to another issue that arose during the course of the discussion, which ended up as a missed opportunity.

My colleague Sheri Johnson as moderator asked the panelists--who celebrated one another as icons of intellectual freedom--whether they thought Harvard had acted improperly when it failed to renew Ronald Sullivan as Head of Winthrop House (one of the undergraduate residential colleges) in light of complaints by students, especially women, about Sullivan's work at the time as a criminal defense lawyer representing Harvey Weinstein. Professors West and George both condemned Harvard College for the action, while praising Harvard Law School, where Sullivan is a clinical law professor, for subjecting him to no penalty.

I agree that the law school had no ground for subjecting Professor Sullivan to any sort of penalty, but despite Professor George's introductory remarks about the importance of understanding the position of those with whom you disagree, I was struck his failure and the failure of Professor West to grasp, much less persuasively refute the objection.

In response to Professor Johnson's prompt, Professors West and George talked at considerable length about the importance of the right to counsel, which, of course, was not the issue. I can't speak for undergraduates living in Winthrop House at the time, but I doubt more than a handful of them thought that Sullivan acted wrongly as a lawyer by representing Weinstein. The complaint--as I understood it at the time and as I understood Professor Johnson to be characterizing it--was about the resulting conflict of interest. I imagine that many of the complaining students were thinking something like the following:

We grant that every criminal defendant in our adversary system is legally entitled to a competent defense. We also grant that if every lawyer who finds an accused's alleged conduct repugnant refuses to represent the accused, the system could be in jeopardy. Thus, it is morally acceptable, perhaps even laudable, for a defense attorney to represent unpopular clients accused of heinous acts. We do not regard Professor Sullivan's representation of Weinstein as immoral, unprofessional, or improper in any way. That said, however, we think that Sullivan cannot simultaneously discharge his lawyerly duties to Weinstein and his pastoral duties to the residents of Winthrop as Head of house.

Is that a valid complaint? Maybe not, but it was disappointing that neither Professor George nor Professor West addressed it. To be fair, West at least gestured in the direction of the real question by asking rhetorically why Sullivan had to be the one to represent Weinstein, but it became clear that he meant that only in the way one would ask the question of any lawyer representing a distasteful client. Professor West was not focused on the potential conflict in the role-morality of being a lawyer and the role-morality of heading an undergraduate residential college.

During the Q&A, one audience member tried to re-focus Professors George and West on the potential conflict, but his question was a bit muddled, so George took him to be asking whether it was legitimate for Winthrop House to decline to renew Professor Sullivan if his work as a lawyer left too little time to attend to his Head of House duties. Of course it would be, George answered, but only if that were not a pretext for discharging him for an illicit reason.

That's fair so far as it goes, but it doesn't go nearly far enough. The question to be answered rather than begged is whether Sullivan's representation of Weinstein counts as an illicit reason. George assumed without arguing for the conclusion that because it would be impermissible for Harvard Law School to discharge Sullivan from his law teaching position because of client representation, it was equally impermissible for Winthrop House not to renew him for that reason. George either tried but failed to understand the question, didn't try to understand the question, or deliberately chose to answer the wrong question. Whatever the cause of his failing, because George took the only objection to Sullivan's Weinstein representation to be an objection to anyone representing a bad guy, George never confronted the conflict in role morality.

Let's fill the gap. Was the conflict in role morality a legitimate basis for non-renewal? I think that's a potentially difficult question.

It would be an easy question if one thought that representing a set of clients necessarily associates the lawyer with those clients, even if technically legal. For example, consider the fact that Alan Dershowitz has of late gone out of his way to represent Donald Trump in his efforts to destroy democracy and before that seemed to take special pleasure in representing men accused of harming women. There's enough there that a reasonable person could infer that Dershowitz doesn't simply take on unpopular clients because he thinks everyone deserves a defense but that he especially enjoys defending men accused of harming women.

I say "enough there" because it's not a slam dunk. After all, Dershowitz did represent Mia Farrow against Woody Allen, and he certainly talks the everyone-deserves-a-defense game, so reasonable minds can differ on whether Dershowitz is like Rudy Giuliani--someone who at this point is indistinguishable from his clients. If either Dershowitz or Giuliani were otherwise qualified for the pastoral role of being a Head of a residential college, their client representation would be a legitimate basis for not hiring or not renewing them--clearly so in Giuliani's case and at least arguably so in Dershowitz's.

What about Professor Sullivan? I don't know whether Sullivan really was in the Weinstein defense game as a professionally detached lawyer--someone who is representing a man credibly accused of rape and other crimes of sexual violence on this occasion but who does not specialize in such defenses nor in slut-shaming victims. According to a 2019 op-ed in the Harvard Crimson, Sullivan took positions on other matters that suggested at least an insensitivity to victims of sexual harassment and assault. But it's also possible that these are cherry-picked examples from a much larger portfolio. I am simply not well positioned to say whether the residents of Winthrop House would have been drawing a reasonable inference in concluding that Sullivan's defense of Weinstein reflected a general attitude.

Nonetheless, even if we assume Sullivan is generally suited by character, attitude, and temperament to do the job of Head of House, the perception and reality of a certain kind of role incompatibility was undoubtedly there--at least during the period of his active representation of Weinstein. I served as a tutor in a residential college at Harvard for a couple of years when I was a law student over thirty years ago. Most of my duties were academic or social, but occasionally there were conflicts, including one violent one. I did not encounter any students who complained of sexual violence, but that was simply luck of the draw. I was responsible for only about two dozen students. A Head of House for an entire residential college will likely encounter such complaints on a regular if not constant basis.

So long as Professor Sullivan was quite publicly representing Weinstein by day, he was literally siding against complainants. That doesn't mean as a matter of strict logic that he would be unempathic to students lodging their own complaints. It does mean he would have a much harder time projecting warmth and acceptance than someone with a different day job.

During their non-discussion of the real issues in the Sullivan case, Professors George and West decried student demands for safe spaces. The point of a serious education, George praised West for saying, was to expose students to novel ideas that take them out of their comfort zones. Like so much else that went on during last week's festival of mutual congratulations, that was true but irrelevant. Of course classrooms shouldn't be safe spaces in the sense of places where no one confronts unfamiliar or challenging ideas. From that proposition, however, it hardly follows that students (or anyone) should have their ideas--including their ideas about what has been done to victimize them--challenged wherever they go.

To Professor George's credit, his defense of intellectual freedom was not complete hackery. For example, he condemned the assault on critical race theory no less than he condemned what he considered progressive efforts to shut down rather than rebut distasteful ideas. That's to the good.

But it should be possible to engage in bipartisan support for intellectual freedom without condemning everything that gets thrown into the broad and ill-defined category of "cancel culture." Celebrating our shared cross-ideological commitments to protecting free speech is consistent with recognizing that there are hard cases, that even self-proclaimed absolutists have lines they will not cross, and that where exactly those lines should be drawn is itself often a matter of legitimate contestation.