Unpopular Speech in a Cold Climate


“The first thing we do, let’s kill all the lawyers.” This exhortation by an anti-royalist revolutionary, in “Henry VI, Part II,” remains one of Shakespeare’s most dependable laugh lines. Lawyers are a pain. At some point or another, everyone wants to get rid of them, especially when legalities seem to stand in the way of sweeping social change. Therein lies the bite of the joke. As the Supreme Court Justice John Paul Stevens once wrote, in a footnote to a dissenting opinion, Shakespeare “realized that disposing of lawyers is a step in the direction of a totalitarian form of government.”

It was decidedly unfunny, last month, to see the words “Down w Sullivan!” spray-painted on the doors of Winthrop House, the residence of Ronald S. Sullivan, Jr., the first African-American faculty dean of an undergraduate house at Harvard. (Sullivan is also a colleague of mine at Harvard Law School and a renowned defense attorney.) In January, he announced that he had decided to represent Harvey Weinstein as defense counsel in Weinstein’s upcoming trial for rape. In an open letter to the Winthrop House community, Sullivan explained that it was a defense lawyer’s duty to insure that the most hated individuals in society receive the fair legal process that is due to anyone against whom the state’s punitive power is arrayed. Student groups, including the editorial board of the Harvard Crimson, condemned his choice, and some students demanded that Sullivan be removed from his position as dean because his decision to be Weinstein’s lawyer made them feel unsafe and posed a conflict with his leadership role in the Winthrop House community.

(I was also approached by Weinstein to join his criminal-defense team, which I disclose here with his permission. Primarily because The New Yorker had, famously, investigated and published various allegations against Weinstein that led to his being charged, and, because I am a contributing writer to The New Yorker, I declined to represent him, wishing to avoid any possible appearance of a legal conflict of interest.)

On the same day as the vandalism, Harvard announced that, in response to “concerns about the impact of this decision on the support that students can expect to receive in the Winthrop community,” the College would undertake a “climate review,” consisting of surveys and interviews of students, after which it would “take actions, as appropriate.” The students were sent a questionnaire asking whether they find Winthrop House “sexist” or “non-sexist,” and “hostile” or “friendly,” among other things. Presumably, if Harvard learns that the “climate” requires it, Sullivan could be fired as dean. Sullivan told The New Yorker’s Isaac Chotiner that many students strongly support him but “feel as though they cannot say anything publicly because they will be tarred and feathered as ‘rape sympathizers.’ ” In the meantime, fifty-two Harvard Law School professors, myself included, signed a letter, published in the Boston Globe, stating that “we view any pressure by Harvard’s administration for him to resign as Faculty Dean of Winthrop because of his representation or speaking on behalf of clients, as inconsistent with the University’s commitment to the freedom to defend ideas, however unpopular.”

Due process for the accused isn’t always easy to stomach. In September, 2001, I was a law student, and, in the days after the 9/11 attacks, I remember sitting in a class discussion over whether indefinite detention and torture were appropriate ways to deal with terror suspects. How could I dare raise the question of their civil rights? These people could be plotting another mass murder. They threatened our most basic sense of safety. In the years that followed, accused terrorists were the defendants who inspired the fiercest public scorn. Their lawyers were denounced as enemies of national security. Yet lawyers’ work in those cases forged sane legal doctrine on due process and executive power, doctrine that protects our civil rights today. Now lawyers for alleged sexual predators occupy the position as those for terror suspects—considered guilty by association. As with terror trials, these #MeToo cases will have lasting implications for constitutional law and criminal procedure.

Well into the second year of the #MeToo movement, as allegations ripen into legal cases, people want and expect the courts to deliver decisions that will truly address the scope of sexual violence in our society. But, as any lawyer knows, many #MeToo cases will not end in legal vindication. Why not? Because the alleged behavior doesn’t match legal definitions, or because of statutes of limitations, or insufficient evidence, or questionable witnesses, or police misconduct, or prosecutorial overreach, or doubtful juries—in short, for all the reasons that cases can fall apart when subjected to scrutiny in court. When defense lawyers do their job, one effect is to make it harder for the government to impose suffering on their clients, whether innocent or guilty. This is a notion that most liberal Americans like, when we talk about mass incarceration or the war on drugs. It is often less comfortable in the context of #MeToo.

In the thirteen years that I have been a law professor, teaching and writing on criminal law and sexual assault, I have also regularly provided legal counsel: both to alleged victims and to people facing allegations of wrongdoing at school, in the workplace, or in the legal system. In the past year, the climate for such work has changed. There is now 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. Lawyers have always been vilified for taking on unpopular clients, but, in the #MeToo era, defense lawyers endanger their good standing even in the most liberal communities, Harvard being only one example.

At first blush, #MeToo supporters might consider this a good thing. Why shouldn’t the movement include censure of lawyers for defending monstrous people who stand as symbols of harm to women? In our constitutional system, lawyers are considered essential to due process. 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. When I was a prosecutor, I represented the state. Now, as an academic, I teach my students to be proud of their work whether they are prosecuting or defending those accused of crime, whatever the crime may be. Punishment is only legitimate if it is grounded in due process, I tell them.

Whether the #MeToo process will be due process depends upon the principled work of lawyers, especially defense lawyers. But Sullivan’s experience suggests that the price of doing that work, in liberal communities, may be not only harassment and threats but also official inquiries and penalties. What happens, today, if I agree to represent an accused #MeToo villain or speak out in defense of his due-process rights? Could that choice be understood to collide with the role of teaching and supporting students, based on a “climate review”? For that matter, journalistic conflicts aside, would the decision to represent a reviled person, in itself, disqualify me from writing for certain publications? If I were under contract for a book, would that contract be taken away? And would the answers be different if the client were, instead, a #MeToo accuser?

I hope to do what my values demand, but it’s silly to pretend that these possibilities don’t act as deterrents. They could keep me from performing a role that I know to be critically important. I know all of this because I have been there. I hope I have not declined any client or held back any writing for fear of reprisal, but I can’t deny that it lurks in my mind. This is true even though I, unlike many other lawyers and writers, as a tenured professor do not experience strong disapproval as a threat to my livelihood.

The core of due process is having a fair chance to be heard. This is something I tell my students, in some way or another, almost every day. That same principle, of hearing people out, is the basis of any free society. In all my roles, of teacher, lawyer, and writer, I’ve never been more conscious of the principle’s wider implications. A chill has descended on our intellectual lives—on the positions we feel free to question and express. If it is implicitly understood that statements running counter to #MeToo orthodoxy, including defense of the accused, may provoke reprisal, then surely those statements are less likely to be made and heard. Why risk the loss of acceptance, reputation, or even employment, merely to explore an idea?

The lesson is not difficult to grasp. It is not about lawyers, nor is it about the men accused of sexual misconduct in court or convicted in the court of public opinion. In this moment, the real lesson is about free expression and free minds. When the views of thinking people, whether lawyers, teachers, editors, or writers, are determined by our self-assessed risk of losing jobs or social standing, it doesn’t take a totalitarian government to repress our thoughts. We have done it to ourselves.