The Lawyer as Public Citizen in the Digital Age
Updated: Dec 1, 2020
What follows is the final 12-minute lecture from my Constitutional Law II: Individual rights course, which ended earlier today:
Each semester at the end of Constitutional Law I and II, I carve out about 12-15 minutes for a personal spiel. Although I intersperse reflections beyond the course content throughout each semester, I think of this parting shot as a final opportunity to encourage students to think carefully about why their career choice matters, how to make lawyering more fulfilling, and, I hope, how, with the benefit of legal training, each of you can work toward making the world a better place. Those of you who studied with me in Constitutional Law I this past spring heard me discuss the social science literature on happiness, which I believe allows lawyers to embrace strategies that improve the quality of their careers and personal lives. The literature is not about happiness in the hedonic sense; rather it is about strategies that give us a greater sense of purpose and fulfillment, which together improve our capacity to serve professional goals, including especially those of our clients. I’ve also given my "Fourteen Bits of Advice for Rising Lawyers," encouraging students to take most seriously those with whom they disagree and to embrace strongly those most critical of their work product. Although my largest bit of advice is always choosing the right spouse or partner, the second most important bit is resisting the too-strong temptation of confirmation bias, both professionally and personally.
Today’s message is a bit different. I’m not going to focus on how to improve your career satisfaction or even the quality of your work product. Although those objectives are unquestionably important, I have another, more pressing, matter on my mind. I’m going to urge you undertake a personal burden, one that is at times unpleasant. I want to encourage you think about the role of lawyers as public citizens. Although costly, the burden is one that I am persuaded we, as lawyers, owe society. Most lawyers aren’t willing to bear it. My hope is that you will. At times doing so might make you uncomfortable; it might cost you an occasional friend or social acquaintance. If so, they weren’t worth keeping. Nothing important is ever free. And this is important.
The idea of lawyer as public citizen has a long pedigree. It traces to Thomas Jefferson, a controversial figure, and to Alexis de Tocqueville. The idea is embedded in the Model Rules of Professional Responsibility. I’m not going to focus on the historical origins or even the original meaning of the phrase. I want to embed the concept in the present: the lawyer as public citizen in the digital age.
It’s no secret that we live in a world of siloed information. When Vanessa Otero, from Ad Fontes Media,* spoke with this class, she reinforced, and helped to frame, something most of you intuitively understand and experience: the way we think about the world is a function of how we interact with the news, broadly defined also to include opinion and analysis. Most of you receive your news through customized feeds typically via Facebook or Twitter. Rare is the student who pulls down as many as ten or even five independent news sources a day. In this class we had two, which confirms Otero's claim that only a tiny percentage of even highly-educated persons, such as yourselves, deliberately read news laterally. Most people not only get their news through customized feeds, but also, they tend to read those feeds through a visceral bias-confirming lens. They credit pieces reinforcing their world view, often with “likes,” and discredit pieces challenging their views, sometimes with angry faces. This might seem trivial, an innocuous outlet that takes but a second and makes us feel good, but beneath it all lies a serious concern.
In recent weeks and months, I have had notable social media exchanges with people who fail to allow for the existence of settled facts, or the idea that within my particular field of expertise, Constitutional Law, not everything is constantly up for grabs. There is a pervasive and growing sensibility that holding fast to an idea is its own justification for demanding that others deem the idea worthy of respect. But this is simply false.
In an excellent TED Talk, Oxford Philosopher Teresa Bejan, having originally claimed civility is a sham, recast civility so as not to be. Bejan pointed out something we all know: people do not like being told they are wrong. And yet, she claims, genuine civility demands it when the wrong thing embraced actually matters. Of course, not everything matters, but some things matter deeply. And in today’s political climate, exacerbated by customized viewpoint-reinforcing news feeds, too many people have lost sight of a critical distinction: there is a difference between embracing a hypothesis, meaning something capable of being falsified, and embracing a matter of preference, or opinion, something not capable of falsification. Taking this one step further, too many people now refuse to concede that embracing something that is not merely falsifiable but actually proven false does not earn that person the status of holding an opinion worthy of respect. And when someone makes that claim, although we always want to treat the person respectfully, that cannot include respecting her or his embrace of something demonstrably wrong. According to Bejan, what I have just said is not at odds with civility; it is civility. Bejan is correct.
To illustrate, we all have preferences as to who our favorite actors are, our favorite cuisines, our favorite restaurants, and, for you, your favorite subject areas and even professors. Those are matters of opinion, and they are worthy of respect no matter how strongly your classmates, or your family, might hold different opinions. But there are matters concerning which we cannot hold “opinions.” One is not entitled to the opinion that a 30-year old can be President of the United States or that a 25-year old can be a U.S. Senator. Those are obviously trivial examples. These are not: One cannot hold the opinion that a Supreme Court nominee has a presumptive constitutional entitlement to the job, disallowing inquiries into past conduct or failing to consider arguably problematic present behaviors. One cannot hold the opinion that a sitting president subject to a House impeachment inquiry has a constitutional right to confront adverse witnesses or to due process, as might attach to certain criminal proceedings, although specifically not to those criminal proceedings that happen to correspond, by loose analogy, to a House impeachment inquiry. These aren’t opinions. They are hypotheses about what our constitutional system requires, and they happen to be wrong. Yes, wrong.
A few caveats are important: First, as public citizens, it is important always to lead with supportable knowledge, never with credentials. Too often we have come to witness individuals holding impressive credentials passing along information that is demonstrably false. No argument is less persuasive than an academic pedigree. Second, although the preceding examples center on recent and present political events, nothing I’ve said is actually partisan. Indeed, that is my point. Part of the professionalism of lawyering is understanding what both sides of any factual dispute, or lawsuit, must agree to. That is why I have told this class that when reading the other side’s brief in a case for the first time, it is best to focus on finding propositions on which both sides must agree. Look for the propositions on which the sides disagree as the second step, never the first. Third, depending on the circumstance, it is often best to engage privately, and it is always important to try one’s best not to embarrass. On social media, you might message privately, and then post the general point, without mentioning the specific person who prompted it. And please don’t expect those with whom you so engage to admit having been wrong. Although that sometimes happens, it is rare. Success more typically takes the form of an interlocutor later softening her or his approach. Count that a victory.
Even in the field of Constitutional Law, there are propositions that are right and that are wrong, and holding tightly to a wrong position does not make that position right or earn it the status of opinion. Pointing out when someone gets things wrong is often unpleasant. That is Professor Bejan’s point. It doesn’t make conversation, or social media exchanges, easy. But doing so is vital to an informed citizenry. And here is where the notion of lawyers as public citizens comes into sharp relief. As lawyers, we hold a special responsibility—that of public citizens—to engage. This includes pointing out such misunderstandings and educating those who, unlike us, have not had the privilege of a first-rate legal education. And yes, that is what you are getting. In my opinion, and this is an opinion, the obligation is especially profound for those, like us, who attended or work in public law schools. Mine was at The University, founded by Mr. Jefferson, who originally posited that lawyers must view ourselves as public citizens. It is also my opinion that on this, he was correct.
To be sure, no one likes a know-it-all. And although Alexander Hamilton, or at least Lin-Manuel Miranda, is right to not give it away, it’s also important to be careful in picking our shots. I’m not asking anyone to be obnoxious. Quite the contrary. I am asking you to envision yourselves even now as the public citizens that you are becoming—professionally trained lawyers with the knowledge and capacity to kindly, yet persistently and unapologetically, point out when people wrongly claim false assertions concerning what matters most to our system of governance and law as opinion worthy of respect. This isn’t fun to do, and you won’t always feel good doing it. But it is an important responsibility, indeed a burden. And it is yours. Benjamin Franklin, who founded my other alma mater, famously stated that we now have a republic, that is, if we can keep it. One of the vital roles you all will play as lawyers—and as public citizens—is paying the personal price of helping to ensure that this a system of governance we can keep.
[Final comments: As always, I welcome your comments. Please also consider, if you have not already done so, entering your email at the blog home page to receive alerts about new posts. Finally, special thanks to Bob Condlin, Brandon Draper, and Vanessa Otero for reading and commenting on an earlier draft.]
*I am a member of the Ad Fontes Media Advisory Board.