"While many have deemed the now-famous question directed at Justice Scalia as inappropriate, I would hope that in a law school as distinguished as New York University the issues raised by such a question are confronted openly. As Justice Harlan so eloquently pointed out in Cohen v. California, "much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. Words are often chosen as much for their emotive as their cognitive force." The words chosen by the student at the Question and Answer session with Justice Scalia were no doubt intended to be offensive, precisely to point out that the silent bigotry of many current laws and social norms that are equally offensive to a stigmatized group. To claim that another question, phrased differently or not as pointededly, would have made the same point, is simply specious. Nor is Justice Scalia, by reason of his status as a member of the Supreme Court, off limits to questioning and accountability. Justic Rehnquist, in Hustler Magazine v. Falwell, noted that "The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold puplic office or those public figures who are intimately involved in the resolution of important public questions. Such criticism, inevitably, will not always be subject to 'vehement, caustic, and sometimes unpleasantly sharp attacks.'" The fact that Justice Scalia wields such tremendous power over the American Republic makes him more open to unfriendly and even derogatory criticism, and not less. While I would not have asked the same question to Justice Scalia, I welcome the fact that someone with greater courage to confront authority would do so. Supreme Court justices are not gods, but people like you and me, and subject to error. They are also some of the least publicly accessible people on the planet, and a rare setting where they make themselves open to questioning is in many ways the only opportunity to confront these individuals with ideas they may otherwise and ordinarily dismiss. The fact that such spirited discussion has resulted from the question directed to Justice Scalia is proof that open and honest political discussion about the role of government often involves discussing things that many people find "inappropriate" or "rude." But in a free society, all speech, especially speech directed towards important political figures, must be recognized as valid, as an "indespensable condition of nearly every other form of freedom," to quote Justice Cardozo from Palko v. Connecticut. To put it simply: if the government cannot outlaw the type of question that was asked to Justice Scalia, I see no reason why social norms at this law school should have that power. Living in a free society means sometimes you have to hear things you don't like; but that is the price we pay for liberty. And as lawyers, we bear a special responsibility to do so because we have the education and sense of self-efficacy to approach the law with that in mind. If that means running over 'standards of professional conduct,' then so be it."
