Judge Stuart Kyle Duncan showed up at Stanford Law School “looking more like a YouTuber storming the Capitol,” according to a witness, and didn’t let up from there. He filmed protestors, refused to answer basic questions with feigned obtusity, and called students “appalling idiots.” But he got what he wanted, as students jeered his every provocation, creating a handful of tidy clips to cast him as the latest martyr of the “campus free speech crisis.”
With video clips out there showing fuller context, the whole affair was fairly transparent to everyone except the Stanford administration, who bent over backward to apologize to Judge Duncan and force students into free speech re-education camps to learn that “free speech” means quiet tut-tutting, preferably within the confines of your dorm room where no one can hear you.
And lo, there was much rejoicing! The New York Times applauded it as a “stand for free speech.” The Washington Post joined in too. The Wall Street Journal headline proclaimed that Stanford “rediscovers” free speech.
As usual, the price of this obsequiousness was paid by Stanford’s minority students. A powerful, unapologetic bigot stormed the halls like a wrestling heel seeking a clutch of 5-10 second clips of students booing when he rudely dismissed their questions.
There are people out there who still write me suggesting that the protesters were in the wrong. Watch as the students ask a good faith, civil question and it takes 45 seconds for them to get loud and angry after he insults them for asking a question he refuses to answer. Guess which tiny part ended up on cable news!
Dean Jenny Martinez should’ve celebrated her students for displaying a model of civil discourse while confronted with an unprofessional hack intent on getting a rise out of them. Instead, she rolled over on them.
Because minority students and their allies are always the losers in these stories because the model of “free speech” being peddled is a top-down, authoritarian model seeking to shield the powerful from criticism. It’s just goalpost shifting all the way down after that. When Yale students protested a representative of a recognized hate group from the hall, they were publicly scolded that they should be respectful and fight back by asking thoughtful questions. Stanford students asked thoughtful questions of a right-wing performance artist and now they’re the ones accused of “shouting down” a speaker. There is no avenue for their voices that won’t get foreclosed.
And, as an aside, in throwing her students under the bus, Martinez continued the embarrassing trend of people with law degrees completely botching the concept of the “heckler’s veto.” FIRE, the free speech organization best described as the ACLU but for your college roommate who wouldn’t shut up about Atlas Shrugged, doubled down on misconstruing the term in its praise of Martinez turning free speech into mandatory obligations:
“The First Amendment does not give protestors a ‘heckler’s veto,’” Martinez correctly observed. Heckler’s vetoes involve shouting down a speaker to prevent them from speaking.
That is not actually what a heckler’s veto is. As a legal concept, the term addresses a law enforcement practice — particularly though not exclusively in the Jim Crow South — that would shut down civil rights protests with vague assertions that the protest might provoke a violent response. It’s about a flavor of prior restraint used to silence speech with the additional “benefit” of preventing images of white miscreants ending up on the national news. At this point, the heckler’s veto discourse out there is pure gaslighting.
The other victim of the administration’s drive to placate the baying mob of right-wing media is the school’s associate dean of diversity, equity, and inclusion, Tirien Steinbach. Steinbach featured in some of the videos reading a statement that Judge Duncan and the media characterized as “a setup.” In reality, her remarks repeatedly underscored that Duncan was welcome to speak, but admonished him to consider why so many people might be uncomfortable with the tenor of his remarks. The remarks amounted to a pretty textbook effort at deescalation and recentering the discussion in good faith and the school’s decision to scapegoat her for it is the more gross assault on free expression.
And Stanford students aren’t going to take the treatment they or Dean Steinbach received silently. The Board of Stanford’s OutLaw chapter clarified that “a speaker that is unable or unwilling to engage with challenges to their objectionable speech has not been censored,” and focused on the real-world consequences that the administration tried to paper over as a “free speech” controversy.
Our community feels the consequences of this choice. We and our allies have been subjected to online vitriol and physical threats from those who wish to do us harm. Trucks displaying LED billboards with our faces on them blasted hateful messages while circling our campus—indeed, even our childhood homes. Vicious messages have filled our inboxes and voicemails. Some who did not attend the protest at all have been targeted and harassed. And just this morning, fringe media roamed the law school grounds.
Fringe media have freedoms too, but if history is any guide they’re not looking for a fair report, but an opportunity to doxx some students. And they’re on campus because they were emboldened by an administration that felt more comfortable putting a target on queer and trans students than having Tucker Carlson throw a one-day hissy fit before moving on to the next faux outrage.
Stanford’s BLSA chapter also wrote about the school’s response and is taking direct action on the school’s recruiting efforts:
These issues have directly led to our decision to boycott. We cannot, in good faith, participate in recruiting Black students into a community more concerned with palliating wealthy, White conservative donors than the “student-focused and community-inspired” legal education SLS promotes. The administration left our concerns unanswered and has deliberately ignored our attempts to bring them into a productive conversation, and as law students, we are human first and lawyers-in-training second…. With this in mind, we must be open with prospective students as they determine their future learning environment. We remain hopeful that we can work with administration to make the institution more inclusive and accessible for Black students and our marginalized peers.
The school relies on the free labor of BLSA members to build trust with prospective students, and if the administration cares more about the diversity of faces in the brochure than treating those students as professionals, then there’s no reason why BLSA should help.
The Dean Martinez letter unintentionally resonates at one point:
I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups.
Except the only “authority” in this scenario is… you.
Judge Duncan got a chance to share his content and didn’t want to deal with criticism of that content from students. It’s the administration that decided that “asking a judge to explain how he squares civility with misgendering” was not “acceptable” content. It’s the administration seeking to suppress speech by blowing by reasonable time, place, and manner restrictions to characterize questions as disruption and introduce mandatory classes to chill protest.
Indeed, the power to suppress speech was very quickly directed towards suppressing the views of marginalized groups in this case.
Yale Law Is No Longer #1—For Free-Speech Debacles [Original Jurisdiction]
Earlier: Federal Judge Calls Stanford Law Students ‘Appalling Idiots’ After Refusing To Answer Their Questions
Trump Judge Tries To Put Reasonable Spin On ‘I Don’t Like Trans People,’ Fails
Stanford Law Protects Their Speakers From ‘Institutional Orthodoxy And Coercion’ By Forcing Their Students To Undergo ‘Mandatory Educational Programming’
Free Speech Is The Freedom To Shut Up And Listen To Your Betters, Trump Judge Explains
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.
