TaxProf Blog

Paul L. Caron
Dean





Friday, March 31, 2023

More Commentary On The Disruption Of A Federal Judge's Speech At Stanford Law School (Part 4)

New York Times Op-Ed:  The Most Profound Loss on Campus Isn’t Free Speech. It’s Listening., by Pamela Paul:

Many valid points have been made about the federal appeals court judge Kyle Duncan’s speaking engagement earlier this month at Stanford Law School, which was repeatedly interrupted by protesters. Advocates of free speech denounced the hecklers’ refusal to let Duncan deliver his remarks. Defenders of the students justified their own right to speak. Duncan and others lamented the tenor of the protests and the response from an administrator who failed to quell the vitriol and asked, “Is the juice worth the squeeze?”

The administrator was asking, essentially: Is it worth letting someone speak if some students consider that person’s views objectionable, even abhorrent? But another question to ask is: What gets lost if we don’t let that person speak? ...

Students at Stanford Law School would do well for themselves to hear out their opponents. In the professional world, it won’t be enough to deem their opponents evil and declare the battle won. They will be sitting across tables from their adversaries and trying to make persuasive arguments against them in courtrooms. Their success will depend on a mutual assumption of good faith from both sides — and from the bench, where not only Judge Duncan but 53 percent of active federal appeals judges were appointed by Republican presidents. ...

We know universities can do a better job of preventing one form of speech from inhibiting another. The harder task, but perhaps the more important lesson, will be teaching students not to want to do so. They shouldn’t avoid opportunities to hear other perspectives but should actively seek them out and reckon with the humbling fact that what they already know — or think they already know — may not be all there is to know. Isn’t that, after all, precisely what learning is about?

Howard Wasserman (Florida International), More on "Civil Discourse" and Judge Duncan:

Heckling and responding negatively to a speaker is counter-speech. Public shaming is counter-speech. Targeting a government official for criticism because they hate his work and ideas is counter-speech. In fact, it seems to me exactly what people are supposed to do in response to a government official's disagreeable actions.

Rick Garnett (Notre Dame), More on "Civil Discourse" and Judge Duncan:

Although I generally endorse the all-in-free-speech-libertarianism vibe of the Sullivan quote, I continue to think Howard is wrong to characterize/frame disruption, insults, "public shaming," etc., during an invited lecture, organized in accord with normal procedures, in an academic setting as "counter-speech." 

Wall Street Journal Op-Ed:  Employers Need to Put the Squeeze on Woke Intolerance, by Gerard Baker:

[M]y question to the senior partners of law firms, corporate chief executives, judges and others who will employ these privileged people is: Do you stand with Jenny Martinez or do you cower behind Tirien Steinbach? Do you want your institutions to be places where the law is respected as the authority that mediates our disputes is blindfolded or are you going to continue to connive at the transformation of the law into a tool of the new identity-class struggle? Are you going to keep facilitating the degradation of the most basic of our freedoms—speech—or will you begin the long struggle against the controlling zeitgeist of totalitarianism? ...

Employers should stop employing these jackals and make it clear that anyone who has been actively involved in blocking people from expressing a legitimate opinion won’t be hired. We are by now used to the way in which employers scour social media for indiscretions that doom job applications. Do the same for these campus extremists.

A reminder, by the way, of the kinds of people, who, on current trends, will be general counsel at Microsoft or top partners at the big law firms:

“We hope your daughters get raped!” one of them shouted at Judge Duncan, as he recalled in his own Journal op-ed.

Wall Street Journal Weekend Interview:  DEI at Law Schools Could Bring Down America, by Tunku Varadarajan:

Wokeness, or what used to be called political correctness, once seemed merely harebrained, the product of shallow ideas and immature passion. The common view was that undergraduates would outgrow it once they left campus and faced the rigors of the real world.

You seldom hear that anymore, as those ideas have run amok in culture- and economy-defining institutions ranging from news organizations and local governments to professional societies and corporate boardrooms. But Ilya Shapiro thinks we’re not alarmed enough about their influence in one important corner of academia: law schools. The professional ideologues who wield administrative authority on American college campuses want nothing less than to “change the American constitutional system,” Mr. Shapiro says. They pose a grave long-term threat to “the rule of law and inalienable rights, and even concepts like equal treatment under the law.” ...

An illiberal takeover of medical schools, Mr. Shapiro quips, might be more “immediately dangerous, in the sense that you don’t have the best doctors treating people.” But some of the students who raged against Judge Duncan “are people who, in 20 years, are going to be joining the federal bench.” Sooner than that, “they’ll be occupying influential positions in state and federal government, bringing legal cases, becoming state legislators in some cases, or occupying the general counsel’s offices of Fortune 500 companies and the partnership ranks of big firms.”

Already, Mr. Shapiro says, partners at law firms “cower in fear of their associates, who question their firm’s representation of certain types of client and demand that statements be made by law firms after Supreme Court decisions and other developments in the political world.” 

Keith Whittington (Princeton), Professor Suggests Murder as Alternative to Shouting Down Speakers:

An English professor at Wayne State University apparently had an overheated reaction to the fiasco at Stanford Law School. He thought the protesters did not go far enough, and he took to Facebook to say so. ...

"I think it is far more admirable to kill a racist, homophobic, or transphobic speaker than it is to shout them down,"he began, and he concluded with "The exemplary historical figure in this regard is Sholem Schwarzbard, who assassinated the anti-Semitic butcher Symon Petliura, rather than trying to shout him down. Remember that Schwarzbard was acquitted by a jury, which found his action justified."

The president of Wayne State has now announced that the professor has been suspended and his social media post referred to law enforcement. ...

The professor's post is almost certainly constitutionally protected as neither a true threat nor an incitement to imminent lawless action. Wayne State, like many universities, has adopted the language American Association of University Professors' 1940 Statement on Academic Freedom. Under that policy, when speaking in public as a citizen a professor should be free from institutional censorship or discipline. Once the police investigation concludes, the professor's suspension should be lifted.

Prior TaxProf Blog coverage:

https://taxprof.typepad.com/taxprof_blog/2023/03/more-commentary-on-the-disruption-of-a-federal-judges-speech-at-stanford-law-school-part-4.html

Legal Ed News, Legal Education | Permalink