Late last month, Justice Caleb Stegall of the Kansas Supreme Court wrote a letter resigning his teaching position at KU Law. Over the course of six pages, the justice lamented that he could no longer be affiliated with a law school that wasn’t “open” to diverse viewpoints. Anyone following the past two years of right-wing outrage over “free speech” will recognize exactly what compelled the justice to step down from the school. One part Federalist Society. One part recognized hate group. Mix thoroughly and beg for faux sanctimonious coverage.
The Alliance Defending Freedom has developed a fairly effective publicity campaign. The recognized hate group will, of course, get a spate of media coverage this week for arguing that a website designer… who doesn’t do wedding sites… but might want to design wedding sites… should get an advisory opinion exempting her from anti-discrimination laws. But this attention is fleeting and donor-based organizations need constant attention to thrive and it has found a winning strategy in hopping from Yale to Texas A&M to Kansas headlining events, waiting for students to organize some manner of protest, and basking in the victimhood culture hyped by the Washington Examiner, or Tucker Carlson, or in this case, a sitting state supreme court justice.
Stegall’s letter cites allegations that members of the KU administration and faculty met with FedSoc members and — while stressing that “it was their right to host the speaker” — urged the group to consider the impact this might have on their professional reputations:
Now, knowing the people involved, I can well imagine that there was no intent to threaten or coerce the board members of the student chapter. I can even see that this effort was likely an ill-conceived attempt to protect those students. After all, it is true that in the current environment, being willing to swim upstream may in fact harm a person’s reputation and even standing in the legal community. But isn’t that the problem? Rather than acquiescing to this, my hope and expectation is that leaders in the legal community would instead help protect the reputations of students willing to engage in difficult discussions—and guide them in that process. Without that support, it took great courage for the students to carry on with the event.
It did not take courage to carry on with the event.
The controversy is the point. In 2018, I wrote an article that proved to be the wrongest I’ve ever been about anything ever. After a Trump appointee for the Ninth Circuit failed because even the Republican Senate couldn’t muster enough support to overcome a public record of snarky racist trolling from the candidate’s college career, I wrote that this could be a wake-up call for budding conservative activists. For years, aggressively mocking social justice served as a campus resume — an opportunity to say the quiet part out loud that more established conservatives would reward down the road. The more outrageous the trolling, the better it is to vet that the student isn’t going to become the next David Souter. When that nomination fell through, I thought it might force some long-term reset in how FedSoc did business.
Wow, was that wrong.
Instead, conservative students doubled down, making national stories out of their “courage” to use racial stereotypes even at the dire cost of not being invited to parties. The students running this event didn’t show any courage in going forward with it because they got exactly what they wanted: free publicity. ADF gets to play the martyr for a news cycle, and the KU chapter of FedSoc gets to posture as heroes when they apply to clerk for Aileen Cannon. It’s a win-win.
Following this meeting, but before the lunch event occurred, I and the entire KU Law community received an email from the Diversity, Equity, Inclusion and Belonging Committee. The email described the speaker—by his association with ADF—as a practitioner of “hate speech.” The email went on to acknowledge, grudgingly, that as a public university KU Law was bound by “the tenets of the First Amendment” and would permit the event to move forward. The email, by implication, accused the student leaders of the KU Law Federalist Society of facilitating hate speech.
Because… they were facilitating hate speech? And that is both constitutionally protected and protected by broader, academic concepts of free speech (within the confines of anti-discrimination rules and laws), but it’s not protected from being labeled as “hate speech.” You don’t get protection from other people having contrary opinions and viewpoints just because you’re interested in debasing yourself for a future gig offering legal commentary to Newsmax.
Also, it’s worth noting that this doesn’t happen when a law school invites, say Ted Olson to speak. The deeply conservative Federalist Society lifer isn’t getting branded for hate speech because conservatives who complain that taxes are too high and regulation is too extreme don’t cross the line into saying that some of the student body are sub-human and deserving and fewer rights. Part of the free speech grift is to act like student objections to ADF are just another slice of general opposition to Republican politics, a generalization based on absolutely nothing. The slippery slope for getting blasted for opposing civil rights stops at “actively opposing civil rights.”
Worse, the email made it very clear that the principles of free and open dialogue are only acquiesced to as a legal obligation at KU Law—they are not celebrated, cherished, or valued. Here, the Diversity, Equity, Inclusion and Belonging Committee cemented in fact what was predicted by the administration only a few hours earlier—the student members of the KU Law Federalist Society chapter were held up before the entire community as pariahs.
While this letter is mostly disingenuous posturing in an effort to get picked up by local and national media — mission accomplished! — consider what this position would mean. There is no space in this model for disagreement, everyone gets a cookie no matter what they espouse. Bringing a hate group on campus didn’t go over well? No kidding! The letter ascribes some sort of negative conspiracy to the fact that the administration called the event what it was… as if the rest of the students would’ve embraced the event but for the administration.
Of course, it shouldn’t have to be said—but I will say it—that my criticism and concern over the handling of this incident by KU Law has nothing to do with the particular speaker, his institutional affiliation, or ADF generally. In the same way, it would be absurd to accuse the Kansas Bar Association or Professor Levy of espousing identical views as those held by ADF. Even so, the KBA did invite an ADF lawyer to present a CLE to Kansas lawyers and Professor Levy did agree to sit on a panel with that lawyer to discuss religious liberty issues. Why?
Why are these apples not the same as oranges, hmmmmmm? Is the argument that KU should have forced FedSoc to host other speakers to counter the ADF lawyer at the event? A law school meddling in how a group wants to run its event seems like a much more egregious intrusion upon speech rights.
That said, whether this was a one-off speech or a panel event may alter how audiences respond to it, but it doesn’t change the fundamental right of folks to correctly call it out as giving a platform to hate speech. One troublesome thread that runs through conservative “free speech” rhetoric is the idea that, while right-wing speakers should never be protested for monologues either, slapping a contrary viewpoint (or merely a moderating one) on a panel to make it a “debate” inoculates the whole affair from criticism. But that’s not actually a debate. It generally devolves into dueling oratories, often excluding valid criticisms from the sanctioned, on stage discourse. It’s just dueling oratory for the purpose of granting presumptive acceptability to both views. Even if it’s better than a monologue in some abstract way, it doesn’t do anything to make it less a platform for hate speech.
So, yeah, the Kansas Bar Association absolutely facilitated hate speech by holding this event, but that’s their right and it’s everyone else’s right to call it out as such.
Professor Levy put the matter well during the panel discussion when he observed in a context entirely apart from the controversy at KU surrounding the Federalist Society—that “if lawyers cannot talk to each other about difficult subjects on which they disagree, how can we expect anyone to?” The entire KBA event stands as a stark counterpoint to the events at KU Law. This is how a mature legal community processes, constrains, and works through even the most difficult of societal conflicts.
This is true, but probably not in the way Stegall intends. Contrary to the thrust of his letter, he’s explicitly seeking silence. He doesn’t want lawyers to say, “this interpretation of the law is wrong,” he wants conservative views that the majority of university educated people reject to receive protection from criticism. It’s not enough that the event gets held… the administration can’t opine on it and fellow students can’t protest it.
And so the wheel continues to spin: troll, whine, repeat. Who knows which law school is next, but it’s coming to a law school near you soon enough. Invite extremists with aggressive stances against anti-discrimination, make a public spectacle when anyone criticizes it, and then pack up and move to the next school.
The irony of this episode in the cycle, is that for all the whining about the grave threat to “liberal pluralism and the public square,” everything Justice Stegall describes proves that these concepts are alive and thriving at KU. Student trolls can invite their hate group buddies to give a speech and everyone else is free to opine about it and even protest it within reasonable requirements to guarantee civility.
Unfortunately, that’s going to be lost on most of the people who stumble across this story in local media. And that’s the whole point and the real threat to the public square.
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.