Milbank sponsored pro-Israel events and ‘CIA torture’ event– but only raised objection to ‘Palestine’ event

February 27th, 2016

Awake Goy

Katherine M. Franke
Isidor and Seville Sulzbacher Professor of Law
Director, Center for Gender & Sexuality Law

February 26, 2016

Dear Mr. Arena:

Thank you very much for contacting us about our February 22, 2016 Open Letter, signed by law faculty, students, administrators and staff raising concerns about actions taken by
Milbank at Harvard Law School. I am grateful to you for responding directly to us about our concerns.

Our letter was prompted by Milbank’s decision to discontinue a pre-existing pledge of financial support for student events once it learned that funds from the “Milbank Tweed Student Conference Fund” had been made available to cover expenses for a student-run event entitled “The Palestinian Exception to Free Speech.” These facts, which we set out in our open letter, are confirmed in your message to us of February 23, 2016.

Your letter offers a general defense of Milbank’s actions, but does not deal directly with the concerns we raised. (For reasons unknown to us, your letter also misattributes assertions to us that may have been raised by other critics. For instance, we did not write, as you assert, that Milbank “threatened to terminate its five-year pledge to Harvard Law School.”) In any event, we remain concerned about the timing of the firm’s decision to defund the “Milbank Tweed Student Conference Fund” and the potential these actions have to chill speech at Harvard and at law schools across the country.

Specifically, we aimed to take issue with the following:

1. That Milbank instructed Harvard Law School to discontinue the “Milbank Tweed Student Conference Fund” after a student group held an event on “The Palestinian Exception to Free Speech.” As a general principle of free speech and democratic principles, we support the notion that controversial speech should be met with more opportunities for speech, not tactics that aim to or have the effect of defunding the fora in which robust speech can be supported without penalty for particular viewpoints being expressed.

2. That the content of the event prompted the discontinuance of funding; content that you characterize as including “statements accusing governments of violating international law and other persons and institutions of engaging in wrongful or harmful conduct.” Even if this characterization of the event is correct, this is the kind of discussion we hold at our law schools all the time, and we actively encourage students to engage is spirited debate about the legality and legitimacy of state and non-state actors. Columbia Law School’s Human Rights Institute, for example, regularly sponsors programs of this nature, as complex issues of accountability for human rights violations across the globe lie at the core of the Institute’s research, teaching, and advocacy work. In fact, Milbank has funded numerous events at Columbia Law School that raise precisely these kinds of challenging and contested questions. It is difficult not to be left with the impression that the decision to withdraw funding from Harvard Law students’ events in this case was related to the fact that this event might raise criticisms of Israeli state policy relative to the Palestinians.

3. Your view that the way the student group referred to Milbank on their event page was somehow inappropriate, or a sufficient reason to withdraw funding for student groups generally, and that it reasonably created the impression that Milbank supported the opinions expressed at the event. The Facebook event page for this student-run panel included the text: “brought to you by the generous support of Milbank LLP.” As we understand it, every student event that received funding from the “Milbank Tweed Student Conference Fund” was required, as a condition of receipt of funding, to include this or similar language on their flyers acknowledging Milbank’s financial support. Your concern that this language might create “a false impression, among many who viewed it, that the firm endorsed the views expressed by the group,” strikes us as unfounded. General funds to a law school to support student events are common, and it is widely understood that the funder gives their support to student groups and the organization of events as such, and not the support of opinions expressed by any particular student group or speaker. This is particularly so when the specific event funding decisions are made by law school staff with no involvement of the firm. Centers and institutes and universities “support” and “sponsor” events every day, and it is widely understood that they do so with the intention of promoting speech, informed debate, and education, and not only to promote opinions with which they entirely agree. In any event, we suggest that Milbank could simply have suggested that for all future events, an amended reference be included to state explicitly that Milbank provided funding for the event by did not necessarily endorse views expressed.

I enclose screenshots of events held at Columbia Law School in recent years that were supported by funding from Milbank. Many of them include a courtesy acknowledgement at the
bottom identical to that which accompanied the student event at Harvard Law School: This program is made possible by the generous support of Milbank, Tweed, Hadley & McCloy LLP. Other events include similar language: Co-Sponsored by Milbank, Tweed, Hadley & McCloy Faculty-Student Intellectual Life Series. Yet no objection from Milbank similar to that raised at Harvard has been lodged in connection with events at Columbia for which a Milbank fund provided support. Many of these events included “statements accusing governments of violating international law and other persons and institutions of engaging in wrongful or harmful conduct.”

I would be more than happy to meet with you and any of your colleagues at Milbank to discuss the nature of our concerns, and steps Milbank might consider to address these concerns. As we stated in our Open Letter, the discontinuance of Milbank funding for student events at Harvard Law School, even as described by the firm in its defense, raises troubling issues about the ethical obligations of significant donors to avoid actions that may undermine the principle of free speech and debate in the law school context. The fact that the donor in question here is a large law firm for whom many law students would like to work after graduation is of even greater concern.

Sincerely,

Katherine M. Franke