The Gaza War in the Law Firms: Contracts and the First Amendment Again

The story has made the rounds.  An NYU law student with an offer from Winston & Strawn published the following in the bulletin of the NYU Student Bar Association:

Winston & Strawn responded by withdrawing its offer and issued the following statement:

Today, Winston & Strawn learned that a former summer associate published certain inflammatory comments regarding Hamas’ recent terrorist attack on Israel and distributed it to the NYU Student Bar Association. These comments profoundly conflict with Winston & Strawn’s values as a firm. Accordingly, the Firm has rescinded the law student’s offer of employment.

As communicated yesterday to all Winston personnel, we remain outraged and deeply saddened by the violent attack on Israel over the weekend. Our hearts go out to our Jewish colleagues, their families, and all those affected.

Winston stands in solidarity with Israel’s right to exist in peace and condemns Hamas and the violence and destruction it has ignited in the strongest terms possible. We look forward to continuing to work together to eradicate anti-Semitism in all forms and to the day when hatred, bigotry, and violence against all people have been eliminated. Our strength lies in our unity, empathy, and shared humanity.

Of course, there are multiple issues and sub-issues that have been well-aired.  I want to focus on an issue that I have not seen addressed and which overlaps with a topic that I discussed in my forthcoming article, Our Dumb First Amendment.  

First, one framing of the debate is whether Winston & Strawn should have retracted its offer or whether its decision to do so is another episode of our cancel culture.  If I were a decision-maker at Winston Strawn, I might have made a different decision, but the decision is entirely theirs.  It is well within the realm of reason, and would likely have been made more definitively in the era before “cancel culture” was a thing.  The decision of a private employer to severe its ties with a potential at-will employee would have passed without notice decades ago, and it also seems unlikely that a person so passionate about the plight of Palestinians would have thought that working for a corporate law firm would put them on the right career path.

A second issue is whether the student’s statement might have been misconstrued or distorted by those who want to indulge their appetites for outrage.  Again, read in context, I think Winston & Strawn’s rendering of the student’s meaning, as an endorsement of terror attacks, was a permissible, if not the most likely, reading of the student’s intending meaning.  The full extent of the massacre was not yet known, but at the time the student wrote, it was already clear that Hamas fighters engaged in mass shootings and kidnappings of unarmed civilians, many at a peace concert/rave that the NYU student very well might have enjoyed attending.

Which brings me to our dumb First Amendment.  There used to be an understanding that words matter and that words can be weapons that should be wielded with precision and caution.  Before the fetishization of freedom of expression, it was widely understood that if you took a position on a controversial matter, there could be consequences that would attach to your exercise of your expressive rights.  In fact, in the heyday of civil disobedience, the consequences were the point. 

People took risks because they wanted to signal their commitment to a cause.  Punish me for my civil disobedience, and the world will see that I am committed to the non-violent pursuit of justice while you understand only power and wield that power because you have no tools of reason or argumentation at your disposal. 

I don’t know about the NYU student.  Perhaps what they wrote was a considered opinion, and they intended to risk their career in order to get out their message.  However, at least some people write as though they think there should almost never be consequences for voicing an unpopular opinion. The result is that people speak passionately and without due deliberation or regard for how their speech might impact others.  A lot of nonsense and intentionally hurtful things get said.  SCOTUS protects it all in precisely the same way, as if the words “fuck cheer” uttered by a cheerleader demand the same level of constitutional protection as a black armband silently worn in protest of the Vietnam War.  Politicians lie with abandon, and the Supreme Court fosters the canard that we have to protect the right to lie in order to allow truth to win out in the marketplace of ideas.

Our dumb First Amendment is nothing like the Framers’ First Amendment, for whatever that is worth.  In any case, we should not make rights into trump cards, whether or not the Framers would have done so. Words can be harmful weapons, and if we protect all expression as though the world depended on it, we render discourse alternatively insipid and toxic.