Paul L. Caron

Monday, March 27, 2023

More Commentary On The Disruption Of A Federal Judge's Speech At Stanford Law School (Part 3)

David French (New York Times), Free Speech Doesn’t Mean Free Rein to Shout Down Others:

Stanford Law (2022)Robust protest should be welcome in the academy, and it is entirely appropriate to ask any judge difficult questions during the question and answer session after a speech. But protests that go so far as to shout down or disrupt speeches or events aren’t free speech but rather mob censorship.

This is an ancient principle of American liberty. My right to protest does not encompass a right to silence or drown out another person. ... By shouting down Judge Duncan, the Stanford protesters violated his right to speak and the attending students’ right to hear his speech.

But I’m less interested in what happened than why it did. This isn’t the first disruption incident in recent years at an elite American law school. Last March, students at Yale Law School attempted to disrupt an event featuring Kristen Waggoner, then the general counsel of Alliance Defending Freedom. (Disclosure: I’m a former senior counsel for A.D.F.) Less than two weeks earlier, students at what is now the University of California College of the Law, San Francisco, shouted down a former Cato Institute lawyer, Ilya Shapiro, so completely that he couldn’t deliver his prepared remarks.

The fundamental problem in top schools like Stanford and Yale isn’t so much the individual choices of the students themselves (though they’re certainly responsible for their actions) but rather that the institutions are often prisoners of a social dynamic they helped create. America’s elite law schools are overwhelmingly progressive, and ideological dominance of any kind can breed groupthink and intolerance. ...

One of the most helpful frameworks for understanding American division and polarization comes from Cass Sunstein at Harvard Law School. In a 1999 paper he identified and described a phenomenon he called the “law of group polarization.” The law is well stated by the first sentence of the abstract: “In a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments.”

In other words, when like-minded people gather, they tend to become more extreme. ... The tie to the academy is obvious. A coalition of like-minded people who study together, often live together and learn from other like-minded people can often radicalize. And when they radicalize, they have trouble not just understanding opposing points of view but also seeing their opponents as decent human beings.

In a strange way, the culture of the legal academy is at war with the culture of the legal profession. While the profession is left leaning, it channels conflict into rules-based legal arguments that feature forced civility and grant each side the full opportunity to make its case. There is no such thing as shouting down opposing counsel in court. You certainly cannot heckle a federal judge into silence. There is no option but to fully understand your opponents’ legal arguments and grapple with them on their merits.

But an ideological monoculture doesn’t prepare students for these kinds of confrontations. Instead, they’re provided with a mountain of confirmation bias divorced from real-world context. ...

Thankfully, the dean of Stanford Law School recognizes the gravity of the educational challenge. On Wednesday she sent a long letter to students explaining that shouting down speakers in a school setting is not an exercise of free speech. While she declined to punish any students involved in the shout-down, she announced that Steinbach is on leave and that students will be required to attend a mandatory half-day session “on the topic of freedom of speech and the norms of the legal profession.” This is a good start, but it’s only a start.

The legal case for free speech often rings hollow without also making a moral case, and for that, let’s return to the words of Frederick Douglass: “Liberty is meaningless where the right to utter one’s thoughts and opinions has ceased to exist. That, of all rights, is the dread of tyrants. It is the right which they first of all strike down.”

Those who strike down free speech aren’t liberators; they’re oppressive (even when they silence powerful men). And when aspiring lawyers act oppressively, they don’t just undermine liberty; they undermine the very profession they seek to join.

David Lat (Original Jurisdiction), Dean Jenny Martinez Speaks Out About The Protest Of Judge Duncan At Stanford Law:

Other deans can learn from her clear, convincing, and courageous statement. ...

In the world of campus free-speech issues, certain pronouncements have acquired canonical status. There’s the Kalven Report (1967). The Woodward Report (1974). The Chicago Principles (2014).

And now we have a new addition to their august ranks: the Martinez Memo (2023). This is what leadership looks like. ...

Brava, Dean Martinez. Your chosen course hasn’t pleased everyone, but it has pleased this observer. I also solicited opinions from my Stanford sources by email and from the world at large on Twitter, and to sum up, most folks in the “moderate middle” support your handling of the situation. (I have posted some of the more noteworthy or detailed responses as an addendum to this post.)

For folks who fault Dean Martinez for not being tougher on the protestors, let me ask you: can you name a current dean who has faced a recent free-speech controversy and issued a better statement than the Martinez Memo? I didn’t think so. Most deans would have written something like this: “While I understand why many members of the SLS community, including members of this administration, find Judge Duncan’s views deeply hurtful, his right to speak was protected under University policy.”

Let’s be realistic: Dean Martinez is the leader of an elite law school in the year 2023. Her faculty has a single public-law conservative. Her student body is overwhelmingly progressive. Her law school is located in northern California. She faces tremendous systemic pressures to sell out free-speech values in favor of social-justice values—or at least to waffle and engage in “bothsidesism.”

But she didn’t. She took a stand. She issued a clear, convincing, and courageous defense of academic freedom and free-speech values. Kudos to her.

Thanks to Dean Martinez for her valuable contribution to the discussion of free expression at U.S. law schools—which I hope can serve as a model for other deans facing similar controversies, giving them the fortitude to resist improper pressures to curtail speech—and good luck to her as she works to reinforce ideals of free speech and civil discourse at Stanford Law.

David Leonhardt (New York Times), Free Speech (or Not) at Stanford:

After Duncan described his experience in a Wall Street Journal essay last week, the episode has received national attention and caused continuing turmoil at Stanford. The associate dean has been placed on leave. Stanford’s president, Marc Tessier-Lavigne, and its law school dean, Jenny Martinez, have apologized to Duncan. Students responded to the apology with a protest during Martinez’s class on constitutional law. On Wednesday, Martinez wrote a 10-page public memo criticizing students’ behavior at the judge’s talk and announcing a mandatory half-day session on freedom of speech for all law students.

The conflict is a microcosm of today’s political polarization. Duncan is a pugnacious conservative who opposed the right to same-sex marriage before becoming a judge. During his five years on the bench he has issued rulings restricting abortion, blocking Covid vaccine mandates and refusing to refer to a prisoner by her preferred pronoun. His critics see him as a bully who denies basic rights to vulnerable people. His defenders call him a good conservative judge (and emphasize that the prisoner in the pronoun dispute was convicted of child pornography).

But even many people who disagree with Duncan’s views have been bothered by the Stanford students’ behavior. And it seems possible that the episode may affect the larger debate over free speech on campuses. ...

Wall Street Journal Editorial, Stanford Law Rediscovers Free Speech:

Ms. Martinez offered students a Constitution 101 tutorial. While protests are protected by the First Amendment, she writes, “the First Amendment does not give protestors a ‘heckler’s veto.’” She cites state and federal jurisprudence on First Amendment law and counsels students that “learning to channel the passion of one’s principles into reasoned, persuasive argument is an essential part of learning to be an effective advocate.” ...

No students who harassed Judge Duncan will be punished, but Ms. Martinez says students will be required to attend a half-day session in the spring to discuss “freedom of speech and the norms of the legal profession.” That should be fun.

It’s also a shame that in her letter Ms. Martinez felt she had to defend her earlier apology to Judge Duncan. In a better world, the students would be expected to apologize to the judge. But at least Stanford Law is trying to teach its charges, and uphold as a standard, some rudiments of the American Constitution.

Washington Post Editorial, A Stanford Dean Takes a Principled Stand For Free Speech on Campus:

This latest episode in the long-running controversy over free speech on campus has had a constructive ending, however, in the form of law school Dean Jenny Martinez’s measured but unequivocal defense of Judge Duncan’s right, and that of other controversial speakers, to be heard at the law school — and of Stanford students to hear them. In a 10-page open letter published Wednesday, Ms. Martinez offered an explanation of the apology she and Stanford President Marc Tessier-Lavigne offered Judge Duncan, which has also triggered protests. (In making that apology, she and Mr. Tessier-Lavigne rose above the judge’s own unbecoming reaction, which included profanity directed at the students.) Importantly, Ms. Martinez’s letter went beyond university policy and First Amendment law, to articulate values which underlie them: specifically, the relationship between reasoned discourse on the one hand and learning, civility and the “special role of lawyers in our system of justice” on the other. She argued forcefully that there is no contradiction between free expression and diversity, equity and inclusion. And she notified students that the school is planning a mandatory half-day training session to reinforce these concepts.

“There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak,” she wrote, “but history teaches us that this is a temptation to be avoided.” And there’s a chance it will be avoided on U.S. campuses where administrators emulate Dean Martinez’s leadership.

Daily Wire, ‘It Is Not Free Speech To Silence Others’: Judge Kyle Duncan Speaks Out About Mob Crashing His Stanford Law School Talk:

Federal judge Kyle Duncan spoke about the recent debacle he suffered during a talk at Stanford University.

The University of Notre Dame‘s Center for Citizenship and Constitutional Government hosted a lecture from Duncan Friday. The speech was about his lecture at Stanford Law School earlier this month, when he was shouted down by students and an administrator. Duncan spoke about the consequences and ramifications of free speech that the Stanford debacle highlighted.

“The importance of today’s event I think really needs no explanation,” Notre Dame professor Philip Munoz said while introducing Duncan. “What happened two weeks ago at Stanford Law School raises fundamental questions about free speech and our liberal democracy and how healthy our free speech culture is … especially at our nation’s elite schools.” Munoz also noted that members of the Stanford Federalist Society were watching the lecture virtually. ...

Duncan said the mob had no intention of engaging with his ideas. “[T]he mob had no interest in my talk at all,” the judge remarked. “They were there to heckle and to cheer and to shame. Let’s say the quiet part out loud: The mob came to target me because they hate my work and my ideas.”

The protest had nothing to do with free speech, he concluded. “It had everything to do with intimidation. And to be clear, not intimidating me. I’m not intimidated by this. I’m a life-tenured judge. I’m going to go back to my court and keep writing opinions. No, the target of the intimidation was the protesters’ fellow students.”

Josh Blackman (South Texas), Higher Education Faces an Inflection Point With DEI:

In the last decade ... [u]niversities began to establish offices of diversity, equity, and inclusion (DEI). The exact role of these entities was always amorphous, but it soon became clear their role would extend beyond admissions and hiring. Rather, DEI sought to inject itself into every facet of academic institutions where DEI could be at issue—that is, everywhere. Following the final year of the Trump presidency—which included George Floyd, the pandemic, and the Capitol riot—this aggrandizement accelerated. At many institutions, DEI has some oversight over the curriculum, student organizations, and even the faculty themselves. Of course, this design inverts the usual hierarchy of academia. DEI should be an administrative department with no more power than finance or IT. But armed with the cause of moral justice, and backed by aggrieved students, DEI can steamroll over pliant faculty who are afraid to push back and be called racists. ...

Compare what Martinez said with what Steinbach said. Martinez wrote from a classical liberal perspective:  DEI "actually means that we must protect free expression of all views." Free expression is the ends, and DEI is one of many means of getting there. Steinbach wrote from a utilitarian perspective: free speech and DEI are both "means to an end" to achieve "liberty and justice." For Martinez, free speech prevails over DEI. For Steinbach, free speech and DEI are both mere tools that are subordinate to some amorphous concept of "liberty and justice" (presumably defined by progressives like Steinbach). And when free speech does not lead to DEI, then the free speech must be subordinated. Steinbach made this point explicitly. She questioned whether the harm from Duncan's speech justified his presence. In other words, where the juice is not worth the squeeze, you don't squeeze. Steinbach is unrepentant, and preaching from the DEI gospel. Again, I presume many DEI deans who read the Wall Street Journal were quietly snapping along.

Martinez, thankfully, rejects the notion that the University can even agree on what "liberty and justice" means. The University should avoid taking any institutional positions:

At the same time, I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an "inclusive" environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues.

I could not agree more. Universities do not pursue any orthodoxies like "liberty and justice," however defined. Universities provide a place in which ideas can flourish. Moreover, most of these statements are, at best virtue signaling, and at worst, embrace a substantive position on a matter of public debate. The university must remain neutral in the battle of ideas. All juice is worth the squeeze.

Higher education faces an inflection point. Stanford is just the cardinal in the coal mine. Deans must choose whether to allow DEI to erect their own fiefdoms that will tower over a school's academic mission. Or Deans, like Martinez, can restore the proper balance of powers between academic departments.

In a future writing, I will offer some suggestions of how universities can confine the jurisdiction of DEI officers to prevent a repeat of what happened at Stanford. A preview: faculty who care about academic inquiry will have to get their hands dirty. This juice will be worth the squeeze.

Heather McDonald (Manhattan Institute), Dismantle DEI Ideology:

For now, the adults at the Stanford Law School appear to be in charge. In a March 22nd letter addressed to the “SLS Community,” Stanford Law Dean Jenny Martínez unequivocally repudiated the shoutdown of federal judge Kyle Duncan by Stanford law students earlier this month. The law school’s Associate Dean for Diversity, Equity, and Inclusion, Tirien Steinbach, who had lectured Duncan about his allegedly injurious presence on campus, has been placed on leave. That is the good news.

Martínez’s letter is one of the most thorough defenses of academic free speech to come from a college administrator in recent years. However, she has declined to discipline the students involved in the heckling. Distinguishing those students who had engaged in punishable conduct from those who had not would be too difficult, she claims. Moreover, the hecklers had not been warned that they risked sanctions. Punishing the hecklers would also leave unpunished those who did not literally disrupt the event but whose vulgar signs or insulting personal questions were outside the norms of civil discourse.

Instead of discipline, Martínez will require all law students to attend a half-day session on free speech later in the semester. (One can’t help but observe that Judge Duncan’s student hosts, who engaged in no speech disruption, do not seem to be in need of such training.) The reasons for Martínez’s amnesty are not persuasive. Nevertheless, that amnesty could serve as an acceptable compromise if other measures to prevent a reoccurrence were in place. They are not, and Martínez’s letter shows why they likely never will be. ...

The most astonishing aspect of the Steinbach affair is that it occurred at a law school. The essence of lawyerly work is to represent someone other than oneself—a defendant, a business client, a plaintiff seeking redress. One’s own identity is not at stake. A lawyer is supposed to grapple with legal ideas—the principles behind a statute or constitutional provision, the implications of a contractual clause. Here, too, his identity should be irrelevant. Much of legal work is adversarial; a lawyer confronts strongly opposing viewpoints, the outcome of which may lead even to the loss of a client's liberty. A lawyer rebuts those arguments not by claiming to be emotionally wounded by them, but by posing a stronger set of arguments that better accord with reason. Here, yet again, a lawyer’s own identity should not come into play.

A large portion of the Stanford law school student body seems to have no grasp of these truths. They weaponized their feelings against Duncan, and claimed that his mere presence somewhere on campus, even if they stayed away from him, was intolerable. Several administrators openly validated this emotionalism; others may be in quiet agreement. It was not coincidental that Steinbach began her speech to Duncan with a recitation of her feelings. Merino offered Stanford’s vast therapeutic apparatus to salve the wounded students’ “hurt and anger.”

The question now is: Where are the faculty? They are looking at an educational failure. If they are not appalled by the protesters’ frenzy of irrationalism, they, too, misunderstand law and their role in passing on legal culture. To be sure, Martinez argues in her March 22nd letter that “lawyers in training must learn to confront injustice or views they don't agree with and respond as attorneys.” But a one-time statement of principle, even one backed up by a “mandatory half-day session on ... the norms of the legal profession,” is hardly enough to reverse the all-encompassing incursion of solipsism. The faculty, either collectively or individually, should themselves put out a statement against the weaponization of alleged victimhood. They should emphasize in all their classes the priority of principle and ideas in the practice of the law. Their continuing silence  on the matter demonstrates either cowardice or complicity with the narcissism of the identity-besotted student.

Stanford’s law students are not alone in rejecting the ideal of disinterestedness. For decades, certain topics have been off-limits in moot court because students claim that making or hearing arguments on the politically “wrong” side of a question is injurious to them. A number of criminal-law professors have stopped teaching the law of sexual assault. The student protests at Yale, Harvard, and other elite law schools against the elevation of Judge Brett Kavanagh to Supreme Court embraced the motto “Believe Survivors!,” a motto antithetical to the presumption of innocence and to due process.

The emotional solipsism of the Stanford students and their peers around the country would make the practice of law impossible. But it also undercuts the highest ideals of Western civilization: that human beings can transcend tribal identities and use reason to govern themselves and to unlock the secrets of nature.

By all means, axe every college DEI office, since every one is a monument to a lie. But the student-services bureaucracy and a large portion of the faculty will simply continue their work. That is why, if we are to restore academic integrity, it will not be sufficient to advocate for free speech, however important such advocacy is. It will be necessary to challenge head-on the grounding falsehoods of the diversity university: that majority society (or whatever is left of it) is always and everywhere oppressing the fragile “Other” and that victim identity trumps the ideal of transcendent, objective knowledge.

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