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.