Paul L. Caron

Saturday, March 18, 2023

More Commentary On The Disruption Of A Federal Judge's Speech At Stanford Law School (Part 2)

Wall Street Journal Op-Ed:  My Struggle Session at Stanford Law School, by Stuart Kyle Duncan (U.S. Court of Appeals for the Fifth Circuit):

Stanford Law School’s website touts its “collegial culture” in which “collaboration and the open exchange of ideas are essential to life and learning.” Then there’s the culture I experienced when I visited Stanford last week. I had been invited by the student chapter of the Federalist Society to discuss the U.S. Court of Appeals for the Fifth Circuit, on which I’ve served since 2018. I’ve spoken at law schools across the country, and I was glad to accept this invitation. One of my first clerks graduated from Stanford. I have friends on the faculty. I gave a talk there a few years ago and found it a warm and engaging place, but not this time.

When I arrived, the walls were festooned with posters denouncing me for crimes against women, gays, blacks and “trans people.” Plastered everywhere were photos of the students who had invited me and fliers declaring “You should be ASHAMED,” with the last word in large red capital letters and a horror-movie font. This didn’t seem “collegial.” 


Walking to the building where I would deliver my talk, I could hear loud chanting a good 50 yards away, reminiscent of a tent revival in its intensity. Some 100 students were massed outside the classroom as I entered, faces painted every color of the rainbow, waving signs and banners, jeering and stamping and howling. As I entered the classroom, one protester screamed: “We hope your daughters get raped!” ...

The most disturbing aspect of this shameful debacle is what it says about the state of legal education. Stanford is an elite law school. The protesters showed not the foggiest grasp of the basic concepts of legal discourse: That one must meet reason with reason, not power. That jeering contempt is the opposite of persuasion. That the law protects the speaker from the mob, not the mob from the speaker. Worst of all, Ms. Steinbach’s remarks made clear she is proud that Stanford students are being taught this is the way law should be.

Washington Post Op-Ed:  The Stanford Law Fracus Was a Perfect Example of the 'Certainty Trap', by Ilana Redstone (Illinois; Google Scholar):

Stuart Kyle Duncan, who sits on the U.S. Court of Appeals for the 5th Circuit, had been invited by the school’s chapter of the Federalist Society for a talk on “Covid, Guns, and Twitter.” The Stanford Daily reported that the protesters’ fliers had criticized Duncan as “a right-wing advocate for laws that would harm women, immigrants and LGBTQ+ people.”

We could dismiss the protest as just another example of campus intemperance. But because this confrontation was so deeply indicative of the appalling state of our national political conversation, it’s worth pausing to understand what was going on.

The protesters’ objection to Duncan was grounded in certainty. What I mean is, their justification for condemning an opposing position came from a value, principle or belief they held as inviolable. The tendency to treat our beliefs this way comes from something I call the Certainty Trap. It is what gives us the satisfying sense of righteousness we need to judge harshly, condemn and dismiss people with whom we disagree. ...

[W]hen it comes to heated political debates, the Certainty Trap holds us back and puts up walls. Paradoxically, those issues where we feel most threatened by disagreement are the ones where we most need to be able to talk with one another.

Unsurprisingly, most people don’t want to engage with people they’ve judged as morally deficient, and most people don’t enjoy being judged as morally deficient for having the “wrong” opinion on a contentious issue.

The sentiment behind the Stanford Law School protesters’ opposition to Duncan is perhaps best captured in a well-known quote often attributed to James Baldwin. It goes: “We can disagree and still love each other, unless your disagreement is rooted in my oppression and denial of my humanity and right to exist.” ...

Baldwin’s words assume a simplicity that works only within the Certainty Trap. For instance, is it really the case that our only two choices are to disagree and love each other, or to shout at each other and walk away? There’s a deeper question, too: How do we know when someone’s disagreement is rooted in “oppression” or a denial of one’s “humanity and right to exist”? ...

I don’t know Duncan, and I can’t vouch for his integrity. He could be precisely the attention-seeking bully some seem to think he is. My point isn’t to convince anyone that his motives are pure. It’s simply to say that the assumptions we make and the certainty with which we make them prevent us from talking to one another on many issues that matter.

If the goal is constructive dialogue and mutual understanding — and the possibility of shedding new light and maybe even changing minds — I’m confident that didn’t happen at Stanford Law on the day of Duncan’s talk. ...

[W]e don’t have to abandon our principles or our values — we just have to be willing to hold them up to the light and examine them. One way to think about avoiding the Certainty Trap is that it’s less about answering questions than it is about generating them.

So, the next time you have a gut reaction that the right position on a heated issue is easy and obvious, and that anyone who disagrees is an idiot or a moral monster? Find those questions. They will serve you well. And they are always there.

Jonathan Turley (George Washington; Google Scholar), Stanford Law Students Demand Journalist Remove Their Names from Stories … After Targeting Other Students By Name:

There is an interesting development in the controversy at Stanford Law School where U.S. Circuit Court Judge Kyle Duncan was shouted down by law students and condemned by a law school dean for discussing his conservative judicial views. Student protesters reportedly published the names of students in the Federalist Society online as part of their cancel campaign. However, Aaron Sibarium, a journalist for the Washington Free Beacon has said that a board member of the Stanford National Lawyers Guild, sent an email demanding the Free Beacon remove her name and those of other students from their reporting because it is threatening and dangerous. ...

It was a highly ironic moment to be sure. However, I am more interested in another aspect of the controversy. I wrote earlier about the joint apology letter of Stanford President Marc Tessier-Lavigne and Law School Dean Jenny Martinez. Neither Tessier-Lavigne nor Martinez promise to hold these students accountable or to sanction Steinbach.  ... The focus ... should not be on the hypocrisy of these students but the passivity of the faculty. Unless students are held accountable for preventing free speech on campus, the apologies from the President and Dean are meaningless.

Washington Free Beacon Editorial, At Stanford, Public Accountability for Thee But Not for Me:

The debate inside Stanford Law School, where activist students earlier this month shouted down federal circuit court judge Kyle Duncan at a Federalist Society event, has moved beyond whether those students should face any consequences for their outrageous conduct. The school has made clear they will not.

Now we debate the propriety of the conservative students on the receiving end of that vitriol expressing their displeasure with the school, and their classmates, in the press.

Stanford administrators are hoping this public relations nightmare will blow over if everybody, particularly the Federalist Society students targeted by the activists, would be so kind as to shut up and take this one on the chin.

Wall Street Journal Editorial, The Tyranny of the DEI Bureaucracy:

Stanford’s president, Marc Tessier-Lavigne, and Stanford Law Dean Jenny Martinez later apologized to the judge. But on Monday students lined the halls to protest Ms. Martinez for apologizing. No one expects Ms. Steinbach will face discipline for her role in the fiasco, and the school is still offering her further involvement to help with university healing.

The dean of students emailed the Federalist Society students who had invited Judge Duncan to offer support and counseling—including from Dean Steinbach. The email also encouraged them to “consider pausing their student organization social media accounts until this news cycle winds down” and “try your best not to engage on Twitter.” In other words, respond to an attempt to stifle your speech by stifling your speech.

The Stanford blowup shows how the culture of DEI, and especially its accumulation of power in the bureaucracy, has become a threat to free speech. Students who gather to jeer disfavored speakers and intimidate and harass fellow students use the authority of DEI offices to sanction their behavior. Rather than promoting diversity, DEI officers enforce ideological conformity. ...

DEI officials have a vested interest in ensuring that the grievances of identity politics continue lest the offices have no reason to exist. As the Stanford experience shows, they promote racial division rather than redress it, and institutions need to rethink their value.

Value Walk, A Remedy For Stanford Law School’s Free Speech Thugs:

Those who value free speech at law schools should consider reporting law students who deliberately prevent guests from speaking – in clear violation of university rules – to bar admission authorities, suggests public interest law professor John Banzhaf [George Washington], who has filed several successful bar complaints.

Press Release, Sen. Cruz Requests Texas Supreme Court and Bar Examiners Consider Stanford Law Student Mob Participation During Application Process:

I would ask that the Texas Board of Bar Examiners, in discharging their duties of assessing the character and fitness of prospective bar applicants, take particular care with students who have graduated from Stanford Law in class years 2023, 2024, or 2025. Specifically, I suggest that students graduating from those years be made to answer, in writing, whether they participated in the shameful harassment of Judge Duncan on March 9, 2023. I would leave it to the considered judgment of the Texas Supreme Court and the Texas Board of Bar Examiners what the proper remedy should be—a remedial training course, a letter of apology, or the like—for those that respond in the affirmative.

Howard Wasserman (Florida International), Asymmetrical Censorship:

Conventional wisdom holds that "both sides" want to restrict speech and lack respect for the First Amendment and free speech values. But that "both sides" framing overlooks the mechanisms through which each side disrespects speech. Vastly overgeneralizing and we can find exceptions, but:

  • From the left, private persons or entities exercise some form of free speech to oppose or counter speech and speakers they do not like.—shouting down speaker, banning speakers from social-media sites, boycotting speakers, etc. That is, what gets framed as "cancel culture," especially on college campuses. ...
  • From the right, officials use the power of the state to silence speakers—banning drag shows, making some classroom speech unlawful, threatening reprisal against speakers who criticize government officials, arresting protesters and journalists, overruling speech-protective precedent to make suing critics easier, etc.

It seems to me that one is worse, because one has many more formal and practical consequences. But the intense pull of "both sides" in national coverage requires that a sophomore at Oberlin is as great a threat as the governor of Florida (and wannabee president).

This dynamic appears in the fallout from the events at Judge Duncan's Stanford speech. Judge Ho (Fifth Circuit) and Judge Branch (Eleventh Circuit)—who previously threatened to stop hiring Yale grads as law clerks—argue in the National Review that disruptive students should suffer consequences, including denying bar admission on character-and-fitness grounds. So lefty Stanford students do not want  Judge Duncan to speak and wield practical actions (some of which are arguably their own form of free speech) to stop him. Righty judges respond by using the full force of the state to punish them for their speech. And everyone will treat them as equivalents.

Rick Garnett (Notre Dame; Google Scholar), On "Asymmetry" and "Civil Discourse" -- Or, Why Howard is Wrong:

In my view, the treatment of Judge Kyle Duncan at Stanford Law School was awful. And, in my view, the efforts of a number of academics and commentators to downplay the awfulness of that treatment is depressing. ...

It's ... not too much to think that students at one of our nation's best law schools should be able to better express disagreement with a speaker's (in their view) misguided views than to yell about the speaker's and his or her spouse's intimate practices. 

Howard Wasserman (Florida International), On Why I Think I am (Mostly, Generally) Right:

I appreciate Rick's response to my post on Stanford. I want to hit a few points.

Paul Horwitz (Alabama), Just the Last Paragraph:

I also think Howard's "asymmetrical censorship" post is wrong--I think! I am sure I disagree on some issues voiced there and in his post before that. But I wanted to focus solely on my disagreement with his last paragraph. Unfortunately, the more I wrote, the less sure I was of the meaning of that paragraph. I think the problem has to do with a sudden switch from one reasonably apt point (which is not to say I agree with it) to a different and inapt point. ...

Law schools considering policies that affect the exchange of ideas on campus can listen to the views of stakeholders such as students, alumni, donors, practicing lawyers, and so on. Then, acting through faculty governance and not just administrative fiat, they should select the policy that is most consistent with their academic status, their academic mission and duty, the demands of their discipline, and the trans-disciplinary norms and duties that constitute the academic profession and environment as a whole. They should make that choice and that policy clear, and they should actually insist on enforcing it. Listening to other stakeholders may be informative. But once the time to choose actually arrives, they must choose and enforce the policy most consistent with the duties and values of the academy, without regard to what any other stakeholders, including students and alumni, think or want. A law school's speech policy is a matter of faculty governance and faculty governance is not shared with students, sympathetic or otherwise, or with Judges Ho and Branch. They're all free to argue against and about it. But we are not free to delegate that decision to them, and it must ultimately be based on what academic duty demands. A law school (or a university) that does otherwise has simply failed in its duty. So there's really no hard problem on that part of the issue.

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