By David M. Greenwald
Executive Editor
From an Historical perspective it is interesting to see how the locus of free speech battles on campus have shifted. In the 1960s, it was the banning of student groups who took part in political activities that drew the ire of students.
Now, as we saw earlier this month in Davis and more recently at Stanford, conservative speakers invited to speak on campus have drawn protests, heckling, and attempts to shut them down.
Such happened when Trump-appointed federal Judge Stuart Duncan spoke at Stanford Law School.
As described by the NY Times, he was frequently interrupted with heckling (and worse) and an associate dean walked to the lectern to attempt to calm the crowd, but instead poured gasoline on the fire, telling the Judge, “For many people here, your work has caused harm.”
That associate dean has been placed on leave.
In an op-ed in Wall Street Journal, Duncan noted, “I have friends on the faculty. I gave a talk there a few years ago and found it a warm and engaging place, but not this time.”
The university has apologized to Duncan.
Jenny Martinez, Dean of Stanford Law School on March 22 wrote a ten page memo where she responds to “many of the questions I continue to receive about why I apologized to Judge Duncan, why I stand by that apology, and why the protest violated the university’s policy on disruption.”
She continues, “I articulate how I believe our commitment to diversity and inclusion means that we must protect the expression of all views.”
Martinez goes on to make a highly legalistic argument—which, given her audience is potentially law students, makes some sense, but is probably not likely to change much thinking.
She argues that while “protest is allowed”— “disruption is not allowed.”
Unlike UC Davis, Sanford, as a private institute, is not governed by the First Amendment, but “California’s Leonard Law, Cal. Educ. Code § 94367, prohibits private colleges from making or enforcing rules subjecting students to discipline on the basis of speech that would be protected by the First Amendment or California Constitution if regulated by a public
university.”
She noted, “Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protestors a “heckler’s veto.”
As First Amendment scholar Dean Erwin Chemerinsky along with Irvine Law Dean Howard Gillman wrote last year in the Washington Post, “Freedom of speech does not include a right to shout down others so they cannot be heard.”
Last year it was the Federalist Society chapter at the University of California’s Hastings College of the Law who attempted to hold a program over the appointment for Justice Breyer’s seat.
Chemerinsky noted, “The program included Ilya Shapiro, a constitutional scholar who was placed on leave at Georgetown Law after posting offensive tweets in January about President Biden being likely to appoint a “lesser black woman” to the Supreme Court.
“Whenever Shapiro tried to speak, student protesters drowned him out with shouting, table-banging, profanity and personal insults. The disruption shut down the event.”
He argues, “It is profoundly disturbing that some students assert a right to determine what messages are acceptable on a campus and try to deprive others within the community of their right to invite or listen to speakers of their choice.
“If such a ‘heckler’s veto’ is allowed, the only speech that occurs will be that which no one cares enough about to shout down.”
The NY Times described this conflict as “a microcosm of today’s political polarization.”
They note that Duncan is “a pugnacious conservative who opposed the right to same-sex marriage before becoming a judge. During his five years on the bench he has issued rulings restricting abortion, blocking Covid vaccine mandates and refusing to refer to a prisoner by her preferred pronoun.”
In short, “His critics see him as a bully who denies basic rights to vulnerable people. His defenders call him a good conservative judge (and emphasize that the prisoner in the pronoun dispute was convicted of child pornography).”
At the same time, “But even many people who disagree with Duncan’s views have been bothered by the Stanford students’ behavior. And it seems possible that the episode may affect the larger debate over free speech on campuses.”
It was barely a week ago that I noted that in a column “Charlie Kirk Presents a Free Speech Conundrum for Which There Is No Easy Answer.”
Interestingly it was Chancellor May who played the role that the Associate Dean played, at once defending Kirk’s right to speak but, at the same time, pulling no punches in calling Kirk “a well-documented proponent of misinformation and hate and has advocated for violence against transgender individuals.” He took a stand against “this hateful and divisive messaging.”
He notes that TPUSA, as a registered student organization, has the right to reserve university facilities and invite speakers of their choice, and that the university faces a heavy burden under UC policy to deny such requests over concerns of violence.
While the policy does allow for a denial of a request if the speaker presents a “clear and present danger to the campus,” the campus “carries a heavy burden for such a denial under these circumstances.”
He said, “In short, while I abhor the inflammatory speech of this speaker, UC policy permits the student organization to invite this speaker.”
Just as is the case with Charlie Kirk, Judge Duncan effectively gets to have his cake and eat it too. In the case of Duncan, he was able to parlay his experience into a self-righteous column in the Wall Street Journal.
The right has clearly learned to weaponize free speech. The left—at least the more radical student left—on campus has played into that by attempting to shut down speech.
That has made old time civil libertarians like Chemerinsky cringe, recognizing, “College campuses should be a place where all ideas and views can be expressed.”
As Chemerinsky also noted, “It is especially problematic when the students attempting to silence other viewpoints are lawyers in training. How are legal professionals to argue cases if they are unwilling to hear from, and learn to respond to, the opposing side of current debates?”
Moreover, from a political perspective these efforts often backfire. They not only gain sympathy and help people like Charlie Kirk and Judge Duncan become martyrs to the right wing cause, they effectively turn these incidents into weapons that can gain attention and notoriety far beyond the reach of the initial event.
Who here would have heard of Charlie Kirk but for the protests and subsequent coverage? The same is true for the Stanford incident.
As I wrote last week, the counter-protests and media attention here is counterproductive, giving far more attention to the speaker than they could have possibly garnered had the event simply been held without protest.
The right has learned to weaponize such events and the left falls into the same trap over and over again.
Chemerinsky writes, “Although the goal of inclusivity is noble and imperative, silencing speech cannot be the way to achieve it.”
Unfortunately the way that this has been handled by the Stanford Dean is not likely to change anyone’s mind and these battles are only going to rage more in the future.
Good article, I mostly agree with it.
Chemerinsky couldn’t have said it any better. There’s always someone or some group that will be offended, be it left or right.
Like Obama and Biden opposed same sex marriage before becoming President?
Just like Ron Oertel when the issue is affordable housing, you link Obama’s and Biden’s position on same sex marriage with Judge Duncan’s view on same sex marriage. Obama’s and Biden’s position has nothing to do with Duncan’s position.
I’m failing to see what you’re trying to connect, here – or the reason you’re bringing up my name.
In any case, my primary concern is not related to “affordable” housing. Continued sprawl is my primary concern.
I could tell you (again) why I think rent control works better to keep rental housing “affordable”, but that’s a different topic.
Anyone who goes to speak at a college campus after a career of seeking to curtail individual rights, and expects a warm welcome, is an appalling idiot.
How about the people protesting, damaging college campuses and injuring cops while trying to curtail a speaker’s individual rights of free speech? Are they also “appalling idiots”?
You’ll have to ask the judge. It was his phrase.
I have to agree with the judge here. He also called them hypocrites and bullies. That’s exactly how they acted. If you watch the video of his attempted speech the judge was very calm and contained and didn’t act like an “appalling idiot”.
https://slate.com/news-and-politics/2023/03/trump-judge-kyle-duncan-stanford-law-scotus-audition.html
I’m glad you brought up Steinbach. It’s reported that she pulled out a prepared written statement from a folio when she addressed Duncan. So it appears she was ready for a confrontation.
Did they hurt anybody physically or damage any property on this occasion? I didn’t see that in the article.
Recent polling shows the Supreme Court at all time lows of public approval. So what is the correct way to voice displeasure with an appeals court justice who has attained lifetime tenure through the Federalist Society takeover of the judiciary? These people live in a right wing bubble where they receive validation, veneration and adulation from like minded conservatives who share unpopular views supported by a minority of the American people.
The Deans and schools are playing the roles they must but the law students have no such obligation. The idea that they must be respectful of such an individual when he is not on the bench is a real stretch. The notion that they won’t know how to argue if they don’t listen politely truly underestimates the abilities of Stanford law students.
Maybe shouting down some people is inappropriate because it deprives them of a venue to be heard. But this appeals court justice gets heard every time he makes a ruling. The real question is if the Justice will reflect on why law students don’t want to listen to what he has to say. Could it be that they are already familiar with what he has said in his unpopular opinions?
So if that’s the case why did they attend? Did they only show up to shout him down and prevent him from talking? How about others that attended? Maybe they wanted to listen and had questions and create a discourse.
No the real question is why these students felt they had the right to prevent another’s free speech. They’re supposed to be law students and should know about the 1st Amendment.
I realize it’s not April Fool’s Day yet, but I nevertheless like how you’ve assumed the best, below.
I’m sure that’s it – engaging in detailed, technical questions and debate regarding the law. No juvenile behavior, of course. 🙂
Ah – I just noticed that you’re referring to “others”, who may have actually wanted to engage in what you suggested.
I wonder if there’s anyone who did, or naively expected it to provide that type of forum.
Seems more like the college in Animal House, than Stanford. Then again, which is more “fun” – at least to watch?
Someone ought to be going on “triple probation” (or whatever that fraternity was sentenced to by the dean).
Well, I guess the administrator at Stanford got some flack, at least.
A speaker at the recent council meeting took Gloria Partida to task regarding someone in the Phoenix Coalition who apparently attempted to distract from a group’s presentation at the library, in regard to medical gender transition.
At the least, the person from the Phoenix Coalition was disrespectful. One wonders if this was addressed internally, within that organization.
You can find the comment immediately after Alan Miller’s comment (which also addressed the broader issue). Starting around the 41-minute mark.
https://davis.granicus.com/player/clip/1542?view_id=6&redirect=true&h=cbeb5328c0d93df939cccd353a7ea92d
Good point Ron. If people want to say that shouting down other’s speech is okay where does it stop? For example, why are people stopped from clapping or jeering when someone comments at council meetings? Shouldn’t they have the right? The commenter you mentioned who spoke at the council meeting asked if she could also hold a sign up behind the council members as the person did at the event she attended? Where is the line? Who’s to determine who gets a “heckler’s veto”?
She also asked if she could do so at (or behind?) the upcoming drag queen show, which I believe will be held in a park. I don’t know if the drag queen show is actually able to “reserve” some portion of the public space for their own use, thereby preventing others from intruding with their message.
Seems to me that there could be more than one type of line (e.g., basic civility, legality, etc.). But Gloria Partida should address the former type of line within her own organization, at least.
Regarding the issue itself, I personally don’t view concerns regarding medical interventions as a “conservative” vs. “progressive” issue. Unfortunately, some folks consistently attempt to frame issues that way, when they find that “their” side has taken a position.
Nor do I (necessarily) view drag queen shows that way.
There is admittedly a sense of desperation on the part of normal people who see the old United States that did value free speech to a new United States where a two-bit TV celebrity gets elected based on middle-school mentality bravado and pushed by well financed media outlets. Maybe that is changing and maybe not, but there is no denying that the speakers who get shouted down are in the camp of the Republican Party that believes in
making a 10 year-old girl carry a fetus to term (Indiana);
firing a principal in Florida because sixth grad kids were shown a picture of Michelangelo’s David statue (some cretin parents there deemed it pornographic);
permit and turn a blind eye to 12 year olds working overnight shifts in meat packing houses;
allow conditions so that a 6-year-old child has access to a loaded firearm;
denying marriage to same gender people and otherwise undermining personal sexual preferences;
This is what strong Republican control looks like and it looks more like repression and stripping the population in general of freedoms. It’s not a William Buckley freedom of speech debate anymore. The right doubles down on the most backward and repressive kind of politics and then is upset when people wake up and point it out. The right has lost the debates over speech; they are now exposed and find themselves in a corner with no where to go but to decry the awareness by normal people of who and what they are. If they want to be listened to, they need to reconsider what they are saying. They need to wake up and stay woke if their point of view is important.
Thought I’d see if the referenced speech was actually made (or recorded), but the first thing I found was more of a speech by the campus administrator, lecturing the actual speaker (below). Though I admittedly got bored with it, and skimmed/skipped through it.
At this point, I don’t take anyone’s word in regard to a “description” of what someone else says. Especially if the person putting forth a description is opposed to the views expressed. This occurs on the Vanguard itself, as well.
And that’s ultimately part of the reason that free speech should not be shut down. It’s unfortunate that the ACLU has largely lost its way regarding that issue – not to mention many supposedly “elite” students.
https://www.youtube.com/watch?v=QxQyztHuPjg
David (in his article above) is correct that most people have never even heard of these speakers (and never would have), were it not for the “controversy”. (Though in this case, perhaps it’s better that they do – since this speaker is also a judge.)
So Duncan requested an administrator to try and quell the crowd so he could speak but instead she pulls out a written speech of her own and rambles on. She wasn’t the invited speaker to the event but she took the opportunity to take the podium.
Here’s a couple of articles from Stanford’s student newspaper, The Stanford Review, where they give opinions and facts about Steinbach’s actions at the Duncan event;