Sunday, November 27, 2011
By Professor Jonathan L. Entin (Case Western) and available at 61 Case W. Res. L. Rev. 1153 (2011). From the introduction:
Professor Babich has provided us with a troubling account of external pressures brought to bear on a highly regarded clinic at Tulane Law School. Professor Joy has put the Tulane story into broader context with accounts of other clinics that have encountered similar criticism and efforts to confine their activities. In this brief comment, I want to raise questions about the extent to which law school clinics could successfully assert First Amendment defenses against outside efforts to restrict their activities in the event that such pressure were to result in litigation.The discussion proceeds in three stages. First, I will offer other examples in which law reform has generated political backlash. The frequency of the phenomenon should come as no great surprise. Perhaps the haves do not always come out ahead, but just as the race is not always to the swift or the battle to the strong, we should expect the haves to defend their position vigorously.Second, I will address some First Amendment issues that bear on this subject. Specifically, I will examine the implications of Garcetti v. Ceballos, a 2006 ruling that takes a restrictive view of the speech rights of public employees and therefore might have troubling implications for clinics at public law schools. I will also examine Legal Services Corp. v. Velazquez, a pre-Garcetti case that points in the other direction by treating the activities of government-funded lawyers as private speech rather than government speech.Third, I will pick up on a hint in Garcetti that academic freedom, which has important First Amendment aspects, might bear on the extent to which law school clinics enjoy legal protection against some of the egregious assaults that Professors Babich and Joy recount in their articles. In doing so, however, I will point to some ambiguities in the law of academic freedom and in the nature of law schools that might limit the extent of protection that academic freedom provides to clinics.