The whole point of the manufactured “campus cancel culture crisis” is to make protesters look unruly and fringe speakers appear reasonable by comparison. A hate group shows up on campus, you take some disingenuously edited clips of the protest while the representative of a recognized hate group sits on stage and plays the patient victim. Rinse and repeat.
But Judge Stuart Kyle Duncan of the Fifth Circuit decided to challenge this foundational assumption when he rolled into Stanford Law School last week. Judge Duncan dispensed with playing the respectable victim and went full wrestling heel, channeling his inner Ric Flair and preening for the crowd about how much they hate him because he’s beautiful — or in this case, because he’s life-tenured and doesn’t have to care about their rights. He successfully feasted on the crowd’s disdain, but can you really make the case that you’re getting canceled when you’re the one launching into calling students things like “appalling idiot” while they ask questions you refuse to answer?
So far, the answer seems to be “yes,” because Stanford Law School has now apologized to him for this behavior…
That’s a really good question! And it’s not even a “gotcha” question, his dogged commitment to misgendering litigants is arguably his most notable decision. Yet he seems caught in the headlights when someone actually attempts to engage him and asks him to address the circular reasoning in his published opinion.
In another video shown in this thread, the judge’s refusal to respond to the question borders on willfully obtuse. The questioner gets increasingly — but understandably — frustrated as Judge Duncan stonewalls like an obnoxious deponent. It’s an exercise in trying the patience of the audience. If students got testy, treating their honest questions like an episode of Boiling Points deserves a lot of the blame.
Until now, the blueprint for these folks requires whining that the protesters would be satisfied if they would simply “engage” and “ask questions.” The speaker has to keep up the conceit that speaking into a microphone from a stage for an hour and then listening to a 15-second question amounts to balanced discourse. When critics choose to protest rather than ask questions, it’s because YOU are smart and THEY are scared.
Apparently, Judge Duncan understood the play call at one point during the festivities based on insights gathered in David Lat’s deep dive into the incident.
At one point during the Q&A, Judge Duncan said, “You are all law students. You are supposed to have reasoned debate and hear the other side, not yell at those who disagree.”
Alas, in a case of “be careful what you troll for,” the Stanford students actually did ask questions and it turns out Judge Duncan is not nearly clever enough to actually handle those questions.
[The judge] lost his cool almost immediately. He started heckling back and attacking student protestors…. Someone accused him of taking away voting rights from Black folks in a southern state. He asked the student to cite a case. While she was looking up the case, he berated her, “Cite a case. Cite a case. Cite a case. You can’t even cite a case. You really expect this to work in court” [not exact quotes, but something along these lines]. When she eventually cited the one she was referring to, he said something along the lines of, “Was I even on that panel?” When she told him he was, he just moved right along with his tirade.
He can’t remember the cases he’s decided? Along with the video above, these accounts describe a guy who came in completely unprepared for even the mildest of questions. To borrow from the judge: “You really expect this to work in court?”
Perhaps he thought his conduct would be enough to keep the audience stirred up and prevent any questions. It would comport with someone who, as one of Lat’s witnesses put it, came in “looking more like a YouTuber storming the Capitol.”
While I think the administration should have handled it differently, my main takeaway is that I have never seen a grown man—let alone a federal judge—comport himself so poorly.
From the moment Judge Duncan arrived on campus, he seemed to be looking for a fight. He walked into the law school filming protestors on his phone, looking more like a YouTuber storming the Capitol, than a federal judge coming to speak.
Lat managed to get a response from Judge Duncan, who remained defiant in the face of his own clownish antics, explicitly noting, “Did I speak sharply to some of the students? I did. Do I feel sorry about it? I don’t.”
Judge Duncan had an opportunity to inoculate himself against the damning quotes and video clips by just saying “and I regret that my emotions got the better of me at a couple of points,” implying that his actions were outliers and any clips of rowdy student behavior was the norm. It’s the benefit of being the powerful figure in the story that he has a lifeline to recharacterize the whole event that a student wouldn’t.
And then he didn’t take that lifeline!
I’m starting to think Judge Duncan lacks the savvy of his colleague Judge James Ho. Judge Ho successfully parlayed a Yale Law protest over a hate group into a big boost in visibility among conservative politicians with some performative petulance. Meanwhile, Duncan keeps saying stuff like this:
“I get where my critics are coming from, and I understand why they don’t like me. They claim that I am marginalizing them and not recognizing their existence. But this is hypocritical of them, since that’s exactly what they are doing to their classmates in FedSoc.”
What was it Martin Luther King said? That they should not be judged by the color of their skin OR by the content of their character? No? It’s supposed to be a “BUT” isn’t it? Conservatives are always screwing that one up.
In any event, the judge’s conduct doesn’t seem to be slowing down the usual voices exploiting campus events to demand authoritarian crackdowns on speech. In theory, the purpose of a freedom is to protect the people who don’t have the luxury of a podium, but those flogging these incidents in the media hope to turn it on its head and recast “free speech” as the right of a powerful person to speak at the silent and unprivileged.
Getting awfully close to dropping the whole free speech canard and just saying “punish all dissent.” It’s going to make things so much easier.
But there are also less draconian avenues to undermine the right to speak.
This is a scary message.
Indeed, this might be more dangerous than the overtly authoritarian notes sounded by others because policing speech draped in the rhetoric of reasonability uniquely silences the most vulnerable.
The message here is that it’s “proper” when the speech is already popular enough to draw a sizable crowd and can still thrive when shunted off to a quiet, out of the way location. Good for KU Law that it could put something like this together, but this cannot be a template for all or even most counter-speech.
Here’s the thing: I don’t like confrontational speech. It’s uncomfortable, annoying, and it can be counterproductive. But the thing about free speech is I don’t have to like it.
In fact, that’s sort of the point. There should be time, place, and manner rules — like those that Yale Law had in the first place — that allow the school to move the protest outside after a couple warnings, but protests can’t be barred or shamed for trying to be in the room in the first place. Such a model relegates minority viewpoints to never being heard.
This rhetoric rings of “you’re free to talk about segregation amongst yourselves, but it’s simply not proper to just sit at a lunch counter.” Sometimes protests are confrontational because it’s the only way for the people without a podium to be heard.
Anyway… here we are again. Another tempest in a teapot campus story inspiring hand-wringing over the plight of “free speech.”
But this feels like a turning point. The victimhood narrative used to require acting like a victim, but Judge Duncan’s gamble that churlish behavior wouldn’t undermine his effort to force the school to prostrate itself seems to have paid off. The school apologized to him anyway.
Has this opened a door? For each of the handful of incidents where a speaker whines about a boisterous protest, there are scores more where nothing happens. Is it now possible to actively foment a spectacle and reap all the benefits of victimhood without any of a costs of comporting yourself like a juvenile?
Stanford Law School’s administration seems to think you can.
Yale Law Is No Longer #1—For Free-Speech Debacles [Original Jurisdiction]
Earlier: Yale Law School Responds To ‘Free Speech’ Complaints By Cracking Down On Free Speech
Banning Law School Protests To Protect Free Speech Marks New Orwellian Heights
Yale Law School Free Speech Crisis Mostly Fake News
Yale Law Professor Suggests Punishing Students For Following The Rules
Trump Judge Tries To Put Reasonable Spin On ‘I Don’t Like Trans People,’ Fails
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.