A dialogue with a future lawyer about free speech

Arjun Ahuja, a now-graduated senior from Greenwich High School in Greenwich, Connecticut, and Lucy Mini, a rising senior at Greenwich High, competed in and won the ConSource-Harlan Institute Virtual Supreme Court Competition held in 2017 in Washington, D.C.

They successfully argued the Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___ (2017) case. As their teacher and coach, I (Aaron Hull) couldn’t be prouder of their tremendous accomplishment.

Following this phenomenal competition, we were asked to write about studying free speech and teaching about free speech. When Arjun and I were discussing our options for writing a reflection, we came to the conclusion that a dialogue about how the process of instructing an engaged, inquiring student might be helpful.

Below is the summation of a dialogue that we had over the summer, both as a way to address the question of freedom of speech in the classroom, and to describe the process of a mentor-mentee dialogue about what can often be a very sensitive topic.

We present this as a time-independent summation of how we approached the topic, around the events of Charlottesville in August. For the record, Arjun has just graduated high school, so some of Aaron’s candid opinions would not be shared, in the same way, in the classroom.

Arjun Ahuja: Hey, Mr. Hull, I’m struggling with this article. What should I do?

Aaron Hull: What about looking at Charlottesville, from this past weekend?

AA: Awesome — that might work! How come the American Civil Liberties Union (ACLU) initially defended the Unite the Right marchers in Charlottesville? How does it impact the First and Second Amendments? How are they shifting themselves given the backlash in Charlottesville?

AH: I tell you what. I’m taking my daughters to the [solar] eclipse. While I’m gone, do you want to look at some applicable court cases that we could discuss when I get back?

AA: Sure! I’ve heard a lot about the Skokie case [National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977)]; are there others?

AH: Yep! Take a look at Schenck [Schenck v. United States, 249 U.S. 47 (1919)], Brandenburg [Brandenburg v. Ohio, 395 U.S. 444 (1969)], the DC and McDonald cases ([District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010)]. You might also want to look at Prof. Akhil Reed Amar’s discussion of an individual right to bear arms. Would that work?

Ten days later …

AH: What did you learn about the legal basis for the ACLU’s position while I was travelling to the eclipse?

AA: Charlottesville could best be described as a teaching experience in the broadness of free speech in today’s society. It’s become commonplace to assume that the First Amendment’s scope is limited. Limited to the extent where it would not protect our ability to shout “fire” in a crowded theater or yell “bomb” in an airport setting. This has become the go-to argument when proponents of censorship attempt to justify government suppression of speech. They would be right if the year was 1919, according to Schenck.

It would do us well, when discussing the merits of free speech jurisprudence, to understand the chronology of arguments as they present themselves through the highest court of the land. In 1919, the Court addressed the question of speech that dissuaded people to support the U.S.’s military efforts and dodge the draft; and whether it was protected under the First Amendment. In a historic decision, Associate Justice Oliver Wendell Holmes, writing for the majority, contended “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Where the merits of this argument fall short come to light in the Court’s ruling in Brandenburg v. Ohio (1969), in which the Court adopted the “imminent lawless action” standard, which would later come to be known as the Brandenburg Test. Elaborating on Schenck, the Court’s ruling in Brandenburg narrowed free speech to the extent where we are no longer judging the content of expression, but rather its repercussions. While all of the aforementioned free speech cases are important, the ACLU has been a fierce advocate of free speech rights up to and including distasteful speech, such as Nazi marches in Skokie, Illinois.

So what changed?

The ACLU recently announced, led by its California chapter, that they will no longer defend the free speech rights of citizens carrying firearms. In a statement to the Wall Street Journal, ACLU Executive Director Anthony Romero said, “If a protest group insists, ’No, we want to be able to carry loaded firearms,’ well, we don’t have to represent them. They can find someone else.”

Consequently, the organization has opened up a whole new Pandora’s box of debate within an already loaded issue. It is a bit confusing to understand, outright, what the ACLU’s stance on guns is. Do they simply believe that the combination of guns and peaceful speech do not mix? Or, is the shift in policy a larger transgression on the legality of firearms as a whole? The latter is definitely more interesting. Akhil Reed Amar, renowned legal scholar at Yale University, argued for the private right to own firearms and had his arguments prevail in the recent ruling of District of Columbia v. Heller (2008). Realistically, the ACLU’s pivot in policy likely falls somewhere in the middle. Due to Heller’s neoteric nature, it is likely that the intersection between First and Second Amendment rights are not well defined enough to feel comfortable about. Ken White, a defense lawyer cited in a recent Vox article on the subject, argues that there is no bright line when, or if, speech is turned into threat or incitement when a gun is involved. It is likely that we still won’t understand where we stand on the issue for a while, considering First Amendment law is about 50 years (Brandenburg) ahead of Second Amendment jurisprudence. As horrible as it may sound, the only remedy to this problem is more of the problem itself. Time cures all, and in legal terms, time tells all.

AA: So, why do you always turn the questions back on us?

AH: I like to think I “inspire to inquire.” My job is to get you motivated, intrigued and fired up to do the hard, investigative legal work that is required to be successful in the Harlan contest, We The People, and the essay contests. The more inspired you are, the more successful the team is, and the more you grow as learners, collaborators, and scholars. This allows students to achieve their true potential. In many ways, the mentor, with a talented student, can act as a wayshower, a tour guide, to the matter at hand. I am always fascinated at the result. For example, you had me Googling “neoteric,” and I learned something myself. This is where the collaborative mentor/mentee interaction is at its best. The mentor may, with experience, point a direction; however, the mentee ends up with unforeseen conclusions and endpoints not envisioned by the mentor. This is that “epiphanic” moment that makes teaching so intriguing — when you are able to inspire and launch a student into their own realm of self-discovery of the topic.

This is why I keep a lending library of volumes that I’ve read or skimmed for use by my students. As we get the prompts for We The People, the Harlan Virtual Supreme Court competition, or the various essay contests we enter, I’m able to say, “you may find the answer in here — go for it!” and turn the learning over to the inquiry process. The most passionate — the most successful — responses happen when I provide a link, and get out of the learner’s way.

Additionally, there is no way a lone agent, a teacher, can alone possess the knowledge to keep every student inspired. For this reason, in the Harlan Institute and We The People competitions, as well as several essay contests, I engage outside experts — legislators, barristers, community members with legal backgrounds — to aid in the preparation process. I’m the first to admit I don’t have the totality of knowledge to guide each student. So, I do my best to recruit experts to help with the process. You and your partner, Lucy Mini, benefitted tremendously from the wise counsel of Duke Maloney, Mareta Hamre and Peggy Moore. In this sense, I hope I modelled the collaboration I hope you’ll use to achieve success in your own professional endeavors.

So, the other part of this question — do you think the ACLU’s position on the Unite the Right marchers is the “correct” one?

AA: Speaking as an aspiring lawyer, it depends. “Correct” is a loaded word and has many different connotations. If correct means legal, then no. With the little precedent we do have dealing with the private right to carry a gun (D.C. v. Heller), the protesters are in the full scope of their constitutional privileges by protesting with their firearms, not to mention that they are also in accordance with Virginia open-carry ordinances. Ken White also argues, “carrying weapons isn’t in itself incitement.” I’d tend to agree in legal terms.

Nonetheless, if correct was to have a more meritorious interpretation, I would have to share the opinion of Waldo Jaquith, ACLU of Virginia board member, who swiftly resigned due to his justification of “what’s legal and what’s right are sometimes different.” I’ve come to this conclusion, albeit a valiant supporter of freedom of speech, with a heavy heart and conflicted mind. But morally, I cannot bring myself to believe that even though D.C. v. Heller allows the private carry of firearms (a decision that I strongly take issue with, but that’s an argument for another time) that protesters of any sort brandishing firearms are committed to the advancement of democratic ideals and peaceful expression, as our Founders intended.

AH: Should we be taking statues of Civil War heroes, like General Lee, down? Leading Civil War Historian Eric Foner said yes, in an August 28, 2017 article in the New York Times.

AA: Unequivocally. Absolutely. I’d first like to disagree with the premise of the question. “Civil War Heroes” — they gave up the right to be treated with any sort of respect when they took up arms against the United States, and history should treat them as such. While I will acknowledge General Lee’s pivotal role in Reconstruction after the War’s conclusion, his legacy during it should in no way be honored. Surprisingly to many so called “Southern heritage” advocates, my opinion is shared by General Lee himself. “I think it wiser not to keep open the sores of war, but to follow the examples of those nations who endeavored to obliterate the marks of civil strife, to commit to oblivion the feelings engendered.” The argument against it is, of course, heritage and the preservation of history. But forgive me if I’m wrong, I’ve never in my academic career cited a statue in any piece of work. All joking aside, history can be preserved without it being honored. The task of removing Confederate statues is long overdue as it is “keeping open the sores of war,” as Lee so eloquently states. What do you think, Mr. Hull?

AH: I have two answers, Arjun. I would definitely share Foner’s opinion in the classroom, but would make every effort to give the other perspective, the “heritage, not hate,” argument, a fair hearing. Then, I’d try to let the students discuss the merits of both. It’s the challenge of teaching because, on this issue, I have little personal faith in the latter argument. I’m happy to share my opinion with you now that you’ve graduated, but I would try to stay as neutral as possible in the classroom. Foner would be a prominent voice, however. We would address the merits of both sides and look to ways of establishing merit for each. It always creates a rich and robust debate.

Arjun, do you like the inquiry-based approach? Why or why not?

AA: I have a borderline obsession with being right, almost to a fault. So any method that will help me somehow get to the right answer I am a proponent of. But what I most appreciate of the inquiry-based or Socratic method is its ability to bring out such nuance, such hypotheticals that discussion is endless. That “right” is only based on perception. Perception of the many, perception of the few. The Socratic method uses the Court of Public Opinion as its Roman Colosseum, debate is welcome, disagreements abundant. Just as I like it.

AH: Arjun, this was awesome. Congrats on your Harlan Institute win, and for taking the time to have this dialogue with me. It was fun. I’ll look for your law school graduation announcement in my mailbox in a few years.

AA: No, thank you! It has been a huge honor participating in an event like the Harlan Virtual Supreme Court and I couldn’t have done it without my partner Lucy Mini, and dedicated educators such as yourself. I’ve said it before, and I’ll say it again, there is no more important time to be constitutionally literate than right now.

• Aaron Hull has taught social studies for 15 years at Greenwich High School, in Greenwich, Connecticut, after five years at Maize High School, in Wichita, Kansas. He is also an Adjunct Professor at the University of Connecticut and works part-time for Tesla Motors. He lives in Norwalk with his wife, two daughters, and a menagerie of family pets. Arjun Ahuja graduated from Greenwich High School in June and now attends the University of Connecticut. Arjun Ahuja took Mr. Hull’s class, We the People: The Citizen and the Constitution, where the inquiry model for individual student learning, in a collaborative environment, is center-stage. The class features preparation for simulated congressional hearing contests where groups of students testify about the Constitution in panels of three to six. Additionally, the students are encouraged to collaborate on competitions like the Harlan Virtual Supreme Court contest and History Day, as well as to participate in external, juried writing competitions. This excerpt is from a longer article that appears on washingtontimes.com.