By David French
Monday, May 13, 2019
We live in an unusual time. Just at the moment when
federal courts — from multiple points of the ideological compass — are granting
ever greater protections for key American liberties, American citizens feel far less free than they did even a
few short years ago. The reason is obvious. While the law still protects
individual liberty from government interference, powerful private actors are
increasingly punitive against even mainstream political positions they dislike.
Online boycott and shame mobs, for example, constitute a
direct frontal attack on the culture of free speech. Silicon Valley censorship
isn’t unlawful, but it still has a profoundly chilling effect on free speech.
There are many, many people who don’t share their sincere and loving religious
beliefs, for example, for fear of lost jobs and online attacks.
But free speech isn’t the only important constitutional
value in cultural peril. Due process is in the crosshairs, and last week
Harvard University provided a disturbing and textbook example of the power of
private actors to punish the exercise of vital American freedoms. In a letter
dated May 11, Harvard College notified the residents of Winthrop House, a
residential house for undergraduates, that their Faculty Deans — Ronald
Sullivan and his wife Stephanie Robinson — were effectively terminated. Though
they both still teach at Harvard Law School (Sullivan runs its Criminal Justice
Institute), Harvard was not renewing their deanship.
This internal personnel decision was national news for a
clear and simple reason: Sullivan came under fire when he joined Harvey
Weinstein’s defense team. As the New York
Times wrote, “many students expressed dismay, saying that his decision to
represent a person accused of abusing women disqualified Mr. Sullivan from
serving in a role of support and mentorship to students.”
Students launched a petition demanding his removal as
dean. “Dozens of protesters” demonstrated outside an administration building,
holding up signs that said “Remove Sullivan” and “#MeToo.” The editors of the
Harvard Crimson attacked his decision
to defend Weinstein. And graffiti was sprayed on Harvard buildings, including
statements such as “Our rage is self-defense” and “Whose side are you on?”
Rather than defending the embattled dean — Harvard’s
first black faculty dean — the university initiated a “climate review,” and the
results of that review provided the pretext for his termination. Harvard
claimed that concerns about the climate in Winthrop House were “serious and
numerous,” and the “actions taken” to improve the climate were ineffective.
The Harvard Crimson
reported on claims that Sullivan’s leadership at Winthrop was toxic regardless
of his representation of Weinstein, but it’s hard to escape the conclusion that
but for the student protests, he’d still be a dean. Moreover, it’s unclear if
his supporters felt free to speak. Sullivan told Sean Illing at The New Yorker that many of his
supporters “feel as though they cannot say anything publicly because they will
be tarred and feathered as ‘rape sympathizers’ and that they’re disinclined to
step out publicly.”
Ironically enough, the activists’ cultural triumph comes
exactly at the moment when progressive
judges — especially progressive judges in California — are handing campus
#MeToo activists a series of stinging legal defeats. Courts are rejecting
university efforts to strip students accused of sexual assault of fundamental
due process rights, and in California, a series of rulings brought 75 campus
adjudications to a screeching halt. In California, “fundamental fairness
requires that accused students have a right to a hearing and to cross-examine
their accusers.”
But there’s more than one way to damage due process, and
if social pressures make it difficult for defendants to retain good
representation, then courts can protect due process all they want — defendants
will still face a serious disadvantage. Writing in The New Yorker, Harvard Law School professor Jeannie Suk Gersen
observes that the “climate” for those who defend clients accused of sexual
misconduct “has changed.” She says there is “such a stigma attached to people
accused of sexual misconduct that anyone who defends legal principles on their
behalf risks being mistaken, in the public mind, for a defender of sexual
violence.”
Gersen’s correct to note that “lawyers have always been
vilified for taking on unpopular clients,” but defense lawyers are now
endangering their good standing “even in the most liberal communities, Harvard
being only one example.”
This is an ominous development for American liberty. Even
a well-designed justice system is only as good as the people who populate it,
and systems that vilify defense lawyers can deter the best attorneys from the
field. Rights to fair hearings and cross-examination are less valuable when
your representation is less competent. Gersen is spot-on:
As a matter of constitutional law,
denying someone a defense lawyer is depriving that person of their rights,
especially if the risk of punishment is involved. Just as crucially, a world in
which lawyers are afraid to defend people against a certain kind of accusation
is a world in which those accusations can never really be tested or verified,
where guilty verdicts bear the whiff of a sham.
In February, I wrote a short piece expressing the hope
that the legal victories for due process on campus would help build momentum
for a cultural revival. I’m less optimistic now. Harvard’s action shows that
the culture war still rages, and when one of the world’s most elite and most
powerful institutions imposes sanctions after students demand punishment for
the “crime” of representing a criminal defendant in court, it looks as if the
forces of liberty are losing momentum.
I confess (much to my shame) that when I was a student I
had a very different view of the defense bar. I wrongly idealized prosecutors,
and I failed to appreciate the vital need to defend the Constitution and
constitutional processes even when a defendant is guilty as sin. I was educated
out of my error, in the classroom and through lived experience. But faced with
its own teachable moment, Harvard chose not to educate but to capitulate. The
students are in charge now, and they want to teach us their own intolerance.
It’s a lesson our culture is learning all too well.
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