Law professors love hypotheticals, the more specific the better. Legal niceties are often arcane (read: boring); enlivening the arcana with fictional scenarios can help students grasp the material (read: stay awake). If a tree falls in the forest and squashes the last living red panda, who’s liable? Under Article II of the Constitution, would Meghan Markle be eligible to run for President? “A good hypothetical is one that’s theoretically plausible but almost certainly would never happen,” RonNell Andersen Jones, a law professor at the University of Utah, said recently. For a decade and a half, Jones, a former clerk for Sandra Day O’Connor, has taught a seminar on the First Amendment, focussing on dilemmas that have been either created or exacerbated by new forms of media. Most years, she has prompted class discussions with one or both of the following hypotheticals: “Imagine that a major social network bans a powerful political speaker, such as a sitting President” and, to illustrate the thin line between free speech and incitement of violence, “Let’s say a crowd gathers outside the White House or the Capitol, riled up and maybe armed, and someone gets up in front of the crowd and shouts, ‘Let’s go in and hang ’em right now!’ ” She continued, “Among the many challenges of living through this era, one of the surreal challenges of being a legal educator is that you have to keep rewriting your lectures. Every time I turn on the news, almost, I have to go back to my notes and delete ‘Imagine, if you will. . . . ’ ”
The other day, Jones convened the inaugural meeting of this semester’s First Amendment seminar, over Zoom. “Hey, Darian, good to see you,” she said to one student (male, cardigan, trendy haircut). “Hi, other Darian,” she said to another student (female, glasses, ordinary haircut). A student named Joel Andersen popped up. “Did your wife get her vaccine yet, Joel?” Jones asked.
“The first round,” Andersen said.
“Awesome,” Jones said. (A law-school class in Utah, it turns out, is just like a law-school class anywhere, except that everyone is nicer.)
After the small talk, Jones began. “Let me take a second here to acknowledge the enormity of the moment,” she said. “If things feel to you right now like they are not normal, it is because this is categorically, absolutely, unquestionably not a normal time. We are on the twenty-second day of a year that feels like it has been a decade long, and one in which there has not been a single day that has gone by where I haven’t been asked, as a constitutional-law scholar, to comment to the press or to the public on something wholly new and unexpected and alarming.” The students stayed politely muted. For the moment, the source of so much of the enormity—the man who had begun the week as the most powerful person in the world and had ended it by slinking into swampy Floridian ignominy—remained He Who Shall Not Be Named.
Jones asked the students, “What makes this an exciting moment to be thinking about speech and press issues, and what makes it a daunting one?”
Within seconds, He was Named. “With Trump being banned from Twitter, is that an attack on his freedom of speech?” another student, Kaleb Evans, asked. “In one way, it is a private-ish platform. But, in another way, is it really private, since almost anyone can make an account? It is free to make an account, and there’s no real restrictions, I think.”
“There are actually pages and pages of restrictions, but none of us read them,” Jones said, defanging the correction with a laugh.
Andersen raised the example of WeChat, a Chinese app that has more than a billion users, at least nineteen million of them in the United States. Last year, as part of his strategy of anti-diplomacy against the Chinese government, President Trump signed an executive order restricting Americans’ ability to use the app. Andersen wondered whether such an order was consistent with the First Amendment, especially since it wasn’t clear whether apps like WeChat are standard commercial enterprises, journalistic outlets, or both.
Jones nodded. “We have built our doctrine on a set of assumptions,” she said. “Then the assumptions start to shift, and the doctrine lags in catching up with them. That has always been true, but it’s staggeringly true at this heightened moment of constitutional chaos.”
In most of the students’ Zoom squares, the afternoon light was fading. A minute before the class period ended, Jones wrapped up the discussion—“We have a really exciting time ahead of us this semester, and we will absolutely not lack for content”—and the squares disappeared. “You only go to law school once,” Jones said. “You only live with your feet in the time period that they’re planted in. It’s hard to convey that there was such a thing as normalcy or stability prior to this. And maybe it doesn’t matter.” ♦
