Before delving into the specifics of Harvard Law School’s bogus blacklisting of our blog, and other examples of censorship at the Law School showing this was not an isolated episode, we pause to observe that the Law School’s successful pressuring of WordPress.com, via DMCA claims, to delete our blog betrayed the free speech principles it had previously committed to following. The Law School betrayed these principles even though we gave it the benefit of every doubt, and took care to eliminate any pretext on which it could censor our speech.
In blogging about issues of corruption and conflict of interest at Harvard Law School, we did nothing wrong. All we did was take seriously past expressions about the honored place of free expression at Harvard University, and especially at the Law School.
Harvard’s University-Wide Statement on Rights and Responsibilities places great emphasis on Harvard being “a community ideally characterized by free expression, free inquiry, intellectual honesty, respect for the dignity of others, and openness to constructive change.” It promises: “The University must affirm, assure, and protect the rights of its members to . . . advocate, and publicize opinion by print, sign, and voice.” Among the “essential” values Harvard promises to uphold “are freedom of speech and academic freedom,”and interference with this freedom “must be regarded as a serious violation of the personal rights upon which the community is based.”
Harvard Law School’s Community Principles set forth the Law School’s commitment to “free expression and inquiry.” Two years ago, Dean Martha Minow wrote to the entire Law School community to reassert the Law School’s commitment to “important community principles and ideals,” including “freedom of expression.”
Two years earlier, in his 2008 Constitution Day speech, Professor Cass Sunstein expressed concern about the growing trend toward speech on controversial subjects being conducted largely on-line, with many consumers of information self-selecting forums which present information that mostly mirrors their existing views. This trend, he pointed out, threatens to reduce the diversity of perspectives which traditionally has been characteristic of the public arena. We share his concern.
Professor Sunstein expounded on the benefits of a rich, real-world free-speech environment in which people can encounter ideas different from their own, so that their deliberations and actions will tend toward productive moderation. He quoted John Stuart Mill’s remarks on the value “of placing people in contact with . . . modes of thought and action unlike those with which they are familiar.”
In particular, Professor Sunstein argued for greater reliance on printed materials, placed in public spaces, as part of an “architecture of serendipity” which can lead to “unchosen, unanticipated encounters “– the opportunity to brush, by accident, over headlines or photos that might not be self-selected, but that nevertheless hold the potential to change readers’ perceptions of matters they may not otherwise have even considered.
Inspired by Professor Sunstein’s advocacy of increasing the diversity of opinions people are exposed to, particularly though the use of printed materials placed such that people not otherwise attuned to the messages will encounter them serendipitously, starting in early April we and others acting under the “Unbound” label began placing posters around the Law School campus, addressing ethical issues raised by the recruiting efforts of large law firms on campus. (You can read more about the “Firmly Refuse” campaign here and here.)
Next, a very small group of the original “Unbound” group, acting under the label “Harvard Law Unbound” (i.e., us), carried out what ended up (it did not start that way) amounting to a test of whether Harvard Law School is truly committed to freedom of speech at the Law School, even when (especially when) that speech is deeply critical of the Law School’s actions.
On the morning of Friday, April 20, about 10 hours before the President of Harvard University, the Dean of the Law School, and the former Dean (U.S. Supreme Court Justice Elena Kagan) would together dedicate the new Caspersen Student Center, named after Law School alumnus Finn M.W. Caspersen, those arriving at the Law School for the day (including alumni visiting for class reunions) serendipitously encountered this poster which we placed on bulletin boards around the Law School, with facts about Mr. Caspersen probably unlike those with which they were familiar (given the Law School’s uniformly laudatory coverage of Mr. Caspersen’s biography, for example, here and here):
A more detailed poster, and a parallel entry on our original “Harvard Unbound” blog (located at http://harvardunbound.wordpress.com), went into further detail about the spectacle of the Law School stripping the name of a selfless philanthropist, Edward S. Harkness, off the Harkness Commons, thereby dishonoring him, to instead honor cowardly tax cheat Finn Capersen — even though Harkness had given Harvard five times more money (in inflation-adjusted dollars) than Caspersen. A copy of the detailed April 20 blog post (including an image of the poster) is reproduced here.
We expected the Law School administration to be upset about our choice of topic, and timing, in implementing Professor Sunstein’s suggestions about how to ensure consideration of a diversity of information in the marketplace of ideas, via paper-based communication with passersby. We expected some sort of counter-speech (though we heard none). What we didn’t expect was something reminiscent of George Orwell’s novel 1984 — that the Harvard Law School administration would respond by censoring our speech, and acting to erase it from the historical record.
We didn’t expect the Spanish Inquisition. Then again:
Our nearly two dozen posters were all ripped down within two hours of being put up, so that virtually no one saw them, and thus virtually no one was aware of our blog, referenced on them. Within 24 hours, and without any prior notice to us of any complaint of confusion that might be caused by the name of our original blog, “Harvard Unbound,” based on a DMCA claim backed by the Law School administration, WordPress.com deleted our blog. (Given the detail in our “About” page indicating that our blog was written by a small subgroup of the original “Unbound” group, it had not occurred to us to include at the top of the blog an explicit disclaimer of any connection to Unbound — Harvard Journal of the Legal Left. Instead of asking us to include such a disclaimer, the Law School used our omission as an excuse to have our entire blog deleted.) But for a tweet by Ramesh Ponnuru, even the fact that the blog had once existed would have likely escaped attention on the internet.
Rather than carp about this turn of events, or attack the Law School administration for censoring our speech in violation of its prior commitments to freedom of expression, we decided to take the high road, give the Law School administration the benefit of any doubt (after all, we had not included an explicit disclaimer in our original blog), and give the administration a second chance to live up to its professed principles, taking care this time to ensure there could be no credible ground for the administration pressing to have our blog deleted. We laboriously recreated our blog, exactly as it existed before, changing only the title (to “Harvard Law Unbound”), and the web address (http://harvardlawunbound.wordpress.com), and adding an explicit disclaimer that our blog had no connection to the Journal and was not authorized in any way by Harvard Law School (see here and here). We then added new posts about the scheduled May 23 visit to campus of the Class Day commencement speaker, Attorney General Eric Holder, and about our new series of posters (four in all).
We then published and publicized the blog via various e-mails to members of the Class of 2012 and others, and put up the posters, during the afternoon and evening of May 21 — two days before the Attorney General’s visit, in order to ensure ample time for counter-speech by anyone interested in the topic we chose to address: the “Fast and Furious” scandal in which the Attorney General is currently embroiled.
Again adhering to Professor Sunstein’s ideas for creative use of spaces that are open to large numbers of passersby, to deliver information they might not otherwise be exposed to, due to our efforts those at the Law School and reading our blog were able to see this attention-grabbing poster:
This was merely our “teaser” poster, to interest readers in our topic. The other three posters went into considerable detail about the deadly, “insane” Operation Fast and Furious overseen by the Attorney General, and about the evidence that the Attorney General lied to Congress concerning when and what he first learned about the Operation. You can view the other posters here. Our blog post introducing this new phase of our project is reproduced here.
Harvard Law School failed this test of its commitment to freedom of expression. If it disagreed with our message, the Law School administration was free to put up its own posters, and/or place a message on its own website. But it made no effort of any kind to engage in counter-speech — no effort to provide members of the Law School community with a perspective different from our own. It simply censored our speech, and acted to remove it from the historical record, just as it had done before.
All of our posters (nearly three dozen this time) were ripped down within hours of them being put up, so that no one in the intended audience (graduating students, their families, and their guests attending the Class Day activities on May 23) ever saw them.
Based on another — this one entirely bogus — DMCA claim made by the Law School administration, our blog was deleted, again, even faster than it was deleted the first time. As documented contemporaneously on Professor Jacobson’s website, the bogus DMCA claim was made at 11:34 a.m. on May 22, and our blog was deleted less than six hours later. The only difference is that this time our blog did not vanish down a “memory hole” reminiscent of 1984, thanks to Professor Jacobson, who preserved it for historical purposes in PDF format here, where it has now been viewed 2.257 times (as of 1 p.m. on June 2).