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Paul L. Caron
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Thursday, March 16, 2023

More Commentary On The Disruption Of A Federal Judge's Speech At Stanford Law School (Part 1)

National Review Op-Ed:  Stop the Chaos: Law Schools Need to Crack Down on Student Disrupters Now, by James C. Ho (U.S. Court of Appeals for the Fifth Circuit) & Elizabeth L. Branch (U.S. Court of Appeals for the Eleventh Circuit):

Law schools like to say that they’re training the next generation of leaders. But too many institutions of legal education have become laboratories of divisiveness, not leadership. A series of recent videos from law schools, including Yale and Stanford, captures screaming students insulting and disrupting accomplished litigators, legal scholars, even federal judges. Evidence is rapidly accumulating that law schools across America are failing in their basic mission to teach students how to become good citizens — let alone good lawyers. ...

Administrators who promote intolerance don’t belong in legal education. And students who practice intolerance don’t belong in the legal profession.

Law schools know what their options are. They know they can suspend or expel students for engaging in disruptive tactics, or threaten to report negatively on a student’s character and fitness to state bar examiners. They know this because schools have done it.

And if schools are unwilling to impose consequences themselves, at a minimum they should identify the disrupters so that future employers know who they are hiring.

Schools issue grades and graduation honors to help employers separate wheat from chaff. Likewise, schools should inform employers if they’re injecting potentially disruptive forces into their organizations.

Otherwise, more and more employers may start to reach the same conclusion that we did last fall — that we have no choice but to stop hiring from these schools in the future. At the end of the day, that may be the only way to send a message that will resonate with law schools — judges and other employers imposing consequences on law schools who refuse to impose consequences on their own. No one is required to hire students who aren’t taught to live under the rule of law.

Washington Post Op-Ed:  Expensively Credentialed, Negligibly Educated Stanford Brats Threw a Tantrum, by George Will:

The law school rabble evinced learned behavior: No one is born feeling entitled to insult and silence others. Where did the privileged boors learn this? At home, around the dinner table? Unlikely, although:

The noun “parent” has become a verb as many people embrace the belief that perfectibility can be approximated if parents are sufficiently diligent about child-rearing. So, “helicopter parents” hover over their offspring to spare them abrasive encounters with the world. And “participation trophies” are given to everyone on the soccer team, lest the excellence of a few dent others’ self-esteem — the fuel that supposedly propels upward social mobility.

Larded with unstinting parental praise and garlanded with unearned laurels, these cosseted children arrive at college thinking highly of themselves and expecting others to ratify their complacent self-assessment. Surely it was as undergraduates that Stanford’s law school silencers became what they are: expensively credentialed but negligibly educated brats.

Stanford’s president and the law school’s dean jointly say they are sorry about the unpleasantness. Not, however, so sorry, as of this writing, that they have fired Steinbach — although they say she refused to do her job: “Staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” The depth of that commitment can be gauged by this tepid rebuke, in bureaucracy-speak, of Steinbach for being improperly “aligned.” As this is written, many of Stanford’s future lawyers are demanding that the dean apologize for apologizing.

Stanford has not expelled any of the imperfectly “aligned” disruptors. The school might be improved by the departure of the student whose idea of intellect in the service of social justice was to shout sexual boastings and scabrous insults. Readers can find in the Washington Free Beacon the insulter’s unintended proof that there is indecent exposure of the mind as well as the body.

Jonathan Turley, What Stanford, UC Davis Campus Chaos Has in Common with Antifa:

The [Stanford] student were outraged that [Dean] Martinez apologized to U.S. Circuit Court Judge Kyle Duncan after he was prevented from speaking to students and faculty last week. These law students believe that conservative viewpoints are "harmful" and thus should not be allowed to be heard on campus. In a twisted concept pushed by many faculty members, they believe that silencing others is an act of free speech.

The same views were evident on Tuesday night at the University of California at Davis, though with a more violent element. Another large group of black-clad protesters wearing masks attacked a venue that was to host a speech from conservative speaker Charlie Kirk. 

Police and students attending the event were assaulted, leaving at least one officer injured. The protesters smashed windows, hurled eggs, and used pepper spray to attack the University Credit Union Center and those who wanted to hear Kirk. ...

The argument that stopping free speech is free speech is nothing more than a twisted rationalization. Protesting outside of an event is an act of free speech. Entering an event to shout down or "deplatform" speakers is the denial of free speech. It is also the death knell for higher education in the United States.

The presence of Antifa at the Kirk event was another predictable element.

I testified in the Senate on Antifa and the growing anti-free speech movement in the United States. I specifically disagreed with the statement of House Judiciary Committee Chairman Jerry Nadler that Antifa (and its involvement in violent protests) is a "myth."

It is at its base a movement at war with free speech, defining the right itself as a tool of oppression. It is laid out in Rutgers Professor Mark Bray’s "Antifa: The Anti-Fascist Handbook" in which he emphasizes the struggle of the movement against free speech: "At the heart of the anti-fascist outlook is a rejection of the classical liberal phrase that says, ‘I disapprove of what you say but I will defend to the death your right to say it.’"

Bray quotes one Antifa member as summing up their approach to free speech as a "nonargument . . . you have the right to speak but you also have the right to be shut up."

However, the most chilling statement may have come from arrested Antifa member Jason Charter after an attack on historic statues in Washington, D.C. After his arrest, Charter declared "The Movement is winning." As the hundreds of black-clad Stanford Law and violent Davis protesters can attest, he is right.

Jason Mazzone (Illinois), Hamline, Stanford, etc.:

[S]tudents at Stanford Law can surely listen to what somebody has to say and then, if they object to what they hear, respond with tough questions of their own. If they cannot, this is not the profession for them. The final moments of the video are, to me, the most telling: after the dean has finished her scolding and before the invited speaker speaks, the protesting students file out the room--satisfied, I suppose, but having learned nothing that will help them in law or life.

The Recorder Op-Ed:  Heckling as Principled Civil Disobedience, by Rory Little (UC-San Francisco):

Sometimes, Americans think you have to break some rules and risk the negative fallout in order to get the attention of faceless yet powerful policymakers. Henry David Thoreau writing next to Walden Pond, the Reverend Martin Luther King Jr. writing from the Birmingham jail.

All these examples, and more, involve rule breaking, by normally rule-abiding Americans who know the rules and understand that authorities may come down hard on them. A governing principle of the philosophy of civil disobedience is being willing to accept (even while protesting them) the consequences that may result. But sometimes powerful governing authorities need a public wake-up call, from people who normally respect the rules. A confrontation of the powerful, in order to get them to pay attention and perhaps even change things. Sometimes the rights and values that are being ignored are worth it. This is the American way.

Critics of recent law school events should not forget that protest, too, is speech; conduct can send a message more strongly, sometimes, than just quiet discussion. Perhaps the rules that are broken should be enforced against the protestors (but then again, perhaps not, when the nonviolent and principled nature of the brief event is recognized). In any case, the underlying message of being ignored, being stepped on, and being disvalued, should also be heard. The power structure needs to pay attention and look for underlying roots of brief and infrequent civil disobedience, and not just blindly enforce the rules that even the protestors normally abide by.

Howard Wasserman (Florida International), Stanford, Preferred First Speakers, and the Nonsense of "Civil Discourse":

I ... reject the framing of this as a "shouting down" issue. Yes, the protesting students prevented him from speaking, in violation of Stanford's forum policy. But if the students had done what the policy allows and urges--oral protests outside the building, silent protests through t-shirts and signs inside the room--Duncan would have responded the same way. He went to Stanford itching for a fight--not sure whether I buy the theory that he sought to raise his profile for a SCOTUS appointment--and would have been as dismissive and rude to silent protesters. No student should have the temerity to protest him--free speech means sit there and listen to what he has to say.

Chris Walker (now at Michigan) visited FIU this week. He shared that when he taught at The Ohio State University, Fed Soc invited a speaker from the ADF. OutLaw held a bake sale outside. The speaker bought something. That is not discourse. But it is effective protest.

Ken White (Popehat), Hating Everyone Everywhere All At Once At Stanford: Don't Expect Free Speech Disputes To Have Heroes:

Stanford students set out to protest the deliberately provocative invitation of Judge Duncan. They started great, modeling the variety of means available to them. They put up fliers denouncing Judge Duncan and FedSoc, they led a vigorous protest in the halls, they arrived at the speech with suitably blunt signs about Judge Duncan. Now, critics will fault them for even this, tone-policing their messages or suggesting that they ought to just sit down and have a Platonic dialogue with Judge Duncan or portraying the FedSoc members as victims of callout culture and shunning. That’s all bullshit. The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense. Put another way, if you say “fuck you” to your classmates, they may say “fuck you” back. If you set out to provoke a response, put on your big boy pants when you get one.

But that wasn’t enough for students. “Assholes have a right to speak” is not a universal value and never has been. Stanford students attempted to shout Judge Duncan down and prevent him from speaking and his willing audience from listening. You will see factual disputes about how disruptive they actually were and how much they were trying to prevent him from speaking as opposed to just offering some light catcalling, but the videos and eyewitness reports make those apologias unconvincing, particularly in light of the fact that the student protester attitude is often "you're goddamned right we shouted that asshole down." Conservatives, on the other hand, will try to portray the students as a violent mob, which isn’t right either.

It went worse from there. Judge Duncan engaged in a “dialogue” with students characterized by petulance and unseriousness, both exchanging insults with protestors and treating even legitimate (if pointed) questions as insults. Look, if protesters are yelling insults at you, you don’t have to talk to any of them. But you don’t get to pose as the icon of civilized discourse and get into an insult-match with them. Pick a lane. On the other hand, if you’re yelling insults at someone, you don’t get to act wounded when they bark insults back. Some commentators have tried to portray students as victims for not getting polite responses to hurled invective. That’s silly. Grow up.

Stanford, institutionally, made it much worse, sending an associate dean to do a grown-up’s job. Tirien Steinbach, Associate Dean for Diversity, Equity & Inclusion, indulged in a colloquy that more or less challenged the entire concept of universities tolerating speech that some people don't like. Steinbach, though ultimately and reluctantly asking students to let Judge Duncan speak, articulated the modern view that if some people assert your words and actions have been harmful, then maybe you shouldn’t speak on any topic: “I mean is it worth the pain that this causes and the division this causes? Do you have something so incredibly important to say about Twitter and guns and COVID that it is worth this impact on the division of these people . . . ?” Stanford’s President and Stanford Law’s Dean have since apologized to Judge Duncan, but in a rather ambiguous way that does not serve to clarify exactly what its expectations are of students and administrators.

Judge Duncan, as I said, is smart, if not necessarily so smart you’d miss a nap to hear him speak. He knew that he’d be a controversial speaker. He came prepared. It seems fairly clear that he arrived with an agenda: play the wronged innocent, contrive defiance, and the popular conservative victimhood tour. Look, when someone comes at you seeking martyrdom, you’re under no moral obligation to give it to them. Wise people might not have fed the troll. Law students are smart, not wise. Law students are reliably useful idiots, and played their role in the conservative pantomime perfectly. It was as if they arrived with a giant gift basket and magnum of champagne to wish Judge Duncan a bon voyage on his cruise of right-wing grifty victimhood. The protestors’ “we get to say who talks and who listens” reception at Stanford will be hot-burning fuel in the right-wing engine that seeks to use the force of law to restrict expression on college campuses to suit conservative tastes.

Everyone in this story makes me angry. ... Nobody in this story makes me optimistic about America.

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.html

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