Newsletter 104 — April 11, 2023
by Heidi Burgess, Guy Burgess, and Carrie Menkel-Meadow
April 11, 2023
The Stanford Protest of U.S. Court of Appeals Judge Judge Stuart Kyle Duncan
For our readers who have not been following the Stanford story, the Law School's Federalist Society (a student-run organization) invited Trump-appointed U.S. Fifth Circuit Court of Appeals Judge Stuart Kyle Duncan to speak to the Law School students and faculty on March 9, 2023. Duncan reported on his experience in a Wall Street Journal Op-Ed: "When I arrived, the walls were festooned with posters denouncing me for crimes against women, gays, blacks and 'trans people.' Plastered everywhere were photos of the students who had invited me and fliers declaring 'You should be ASHAMED' with the last word in large red capital letters and a horror-movie font. "
Once inside, Duncan was unable to give his talk, as he was loudly and repeatedly shouted down by dozens of student protesters who were supported by at least one administrator. According to New York Times' Columnist David Leonhardt, "When he [Duncan] asked Stanford administrators to calm the crowd, the Associate Dean for Diversity, Equity and Inclusion walked to the lectern and instead began her remarks criticizing Duncan by observing, “For many people here, your work has caused harm.” After delivering her own prepared remarks, she closed by saying (according to Duncan's retelling at least) "I look out and I don’t ask, ‘What’s going on here?’ I look out and I say, ‘I’m glad this is going on here’" [referring to the protest that shut down his talk.] (Duncan backs up his assertion with a link to a video and audio of the event — and the audio comes with a lengthy discussion of the minute-by-minute events which illustrate very clearly the dangers of escalation, as both sides, including the Judge, got increasingly inflammatory.)
Duncan observed in his op-ed that "the protesters weren’t upset by the subject of my talk—a rather dry discourse on how circuit courts interact with the Supreme Court in times of doctrinal flux. Rather, I was their target." After a time, the protest leader asked that half the protestors walk out and the others tone down their heckling enough that they could pose questions to the Judge. According to Duncan, "I dispensed with my prepared remarks and opened the floor. That went poorly, and the plainly hostile questions were the least of it. Students hurled abuse, including vile sexual innuendo; some filed past me spitting insults (“You’re scum!”). Two U.S. Marshals decided it was time to escort me out."
Two days later the Dean of the Law School, Jenny Martinez and the University President, Marc Tessier-Lavinge formally apologized, which elicited further protests from the students. On March 24, Dean Martinez released a letter to the Stanford Law School students, faculty and staff addressing the matter further. In that letter, she asserted regarding academic freedom, free speech, and protests on university campuses that:
- "Protest is Allowed but Disruption is Not Allowed." She backed up this statement by referencing numerous court cases, arguing (among other things) that "the First Amendment bars regulation of speech on the ground that listeners might find its content disturbing...[but] the First Amendment permits the regulation of speech that “substantially impairs the effective conduct of a meeting.”
- "The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech."
She then set out "next steps" for the University which included holding a "mandatory half-day session [emphasis hers] in the spring quarter for all students on the topic of freedom of speech and the norms of the legal profession." She also formed a faculty committee to solicit feedback from faculty, students, and members of the bar (including alumni) seeking further recommendations on how to improve constructive and inclusive discourse [emphasis ours] at the law school." In closing, she observed that "a more detailed and explicit policy with clear protocols for dealing with disruptions [emphasis hers] would better protect the rights of speakers and also those who wish to exercise their right to protest within permissible bounds, and is something we will seek to adopt and educate students and staff on going forward. [emphasis hers].
Carrie Menkel-Meadow's Letter to Her Colleagues:
Dear Colleagues:
For those of you [who] have been following the issues about the controversies at Stanford Law School [and] the actions of students and administrators with reference to the “shoutdown” of a conservative federal judge invited by the Federalist Society to the Stanford Law School, I attach a copy of the letter circulated by Dean Jenny Martinez to the larger Stanford and public community. This is, in my view, a good primer on the complexity of speech on campus (which cites our former Dean Erwin Chemerinsky and current Chancellor Howard Gillman), which it seems appropriate to keep in mind for our many public events in the next few weeks. Note that Stanford law students will now be required to attend mandatory educational programming on the topics of “freedom of speech” and “the norms of the legal profession.” Dean Martinez’ memo does an excellent job of explaining why law students and lawyers in particular have additional concerns and issues in this area (and she references the earlier history of civil rights lawyers who had done to them what some progressive students are now doing to others. These are not “false equivalences” as some have indicated). I agree with her concerns that law schools (and some colleges and universities) are in danger of becoming “echo chambers” in which only certain views are tolerated and are allowed to be expressed. Lawyers and law students deal with difficult conflicts every day. That is what we do. Our discipline is supposed to provide both substantive and process standards for the achievement of justice. Given my work in law and conflict resolution, I think we must continue to look for productive avenues for dealing with highly contested and controversial issues — silencing, threats or acts of physical harm, and other “coercive” tactics are not the most productive ways to pursue these aims.
The memo also cautions Stanford student groups and administrators from overclaiming institutional endorsements of particular views, which I also think is relevant for our community.
As a student of the history of book banning and speech regulation (including the regulation of hate speech in Europe, which differs from American jurisprudence), I commend this statement for your own edification. I do not necessarily endorse every statement in this letter but I think it is a pretty learned explication of the complexities of the issues for our current times of disruption, “trigger warnings,” cancel culture and other stresses to open university and law school education and inquiry.
Have a good weekend.
Post Script by Guy and Heidi
While lawyers, law school faculty, and students may have more knowledge about the legal definitions of free speech, it seems to us that the guidelines set out by Dean Martinez and echoed by Carrie Menkel-Meadow should serve as a guide to all of us when we consider what kinds of speech should and should not be considered permissible.
Democracy is built on the concept of non-violent conflict and contention. No one ever expected we all would agree. Indeed, we argued in the second framing paper for this discussion that democracy is, in essence, a dispute handling system. In Newsletter 95, we further developed this idea by drawing upon Ury, Brett, and Goldberg's argument that healthy dispute-handling systems resolve most disputes and conflicts on the basis of interests. Force (they call it "power") is only used as a rare last resort. If we want our democracy to thrive — or even to survive — we need to turn away from today's vast over- reliance on power contests (which the Stanford demonstration certainly was), and turn, instead, to rediscover the wisdom and efficacy of collaborative, interest-based negotiation.
In addition to emphasizing negotiation, exchange, and compromise, we also need to reinvigorate integrative efforts to pull us back together as a more cohesive whole [as emphasized by Kenneth Boulding and Paul Wehr in their discussions of the Three Faces of Power and the Power Strategy Mix (Newsletter 102).] Similarly to Ury, Brett, and Goldberg, Boulding and Wehr argue that force should be used rarely and only as a last resort. Exchange (e.g., interest-based negotiation) and integrative power—the power of respect, of community, and of belonging—should be utilized far more often.
That doesn't mean we all need to agree about abortion or trans rights or immigration or the many things that the Stanford students probably didn't like about Judge Duncan's decisions. But trying to discredit what he was trying to say by yelling at him and insulting him, or preventing him from saying anything is not a way to persuade him — or anyone else — that alternative ideas are better. Indeed, it likely did the opposite.
Clearly, the Judge wasn’t persuaded, as his increasingly hostile responses to the heckling and his later op-ed showed. Neither was the Dean of the Law School, who, not only apologized to the judge (not the student protestors) and is requiring all students, faculty, and staff to spend a half day next term learning about freedom of speech and what that means is and is not acceptable on university campuses. Clearly, she thinks what happened on March 9 was not acceptable, and we would agree.
We would add the more general comment that all of us should think long and hard about restricting speech that favors some political beliefs, but not others. There is no telling who will be making the decisions about what is "good speech," and what is "bad speech" in the future. It might be you being silenced (or jailed or worse) in the future. Far better to allow all but the most dangerous speech (the proverbial yelling "fire" in a crowded theatre when there isn't a fire). Much better to listen carefully and try to understand the reasoning behind the speech you think you abhor. You might discover that the other side has valid reasons to think the way they do (reasoning that you may even decide that you support). Even if you are not persuaded, you might learn better ways to persuade them to come around to your way of thinking. Listening is almost always better than yelling. And, learning comes from a willingness to be persuaded.
We need to remember that democracy is a system for allowing people with different and often competing beliefs to live together in a climate of mutual tolerance, respect, and, where appropriate, collaborative problem-solving. It is not a system for imposing one group's views on another.
Some of our friends would argue that American democracy IS ITSELF the problem, and it must be replaced with a different government system that allows their side (either progressive or conservative) to impose their views on the other, because the other is “evil,” or more gently, “flat out wrong.” But we know of no system of government except democracy that is more likely to provide “freedom and justice for all.” Any version of authoritarianism, even authoritarianism run by one’s own side, is much more likely to cause harm than good, even to one's own side. Certainly, we need to make American democracy better. But we should work to do that, not disregard its tenets (such as freedom of speech) when they seem inconvenient to us.
For more perspectives on the Stanford story that goes to the core of so many of today's big conflicts, you might consider articles by Judge Duncan, Ms. Steinbach (the Stanford Law School’s associate dean for diversity, equity and inclusion), Alex Morey of the Foundation for Individual Rights and Expression, and Pamela Paul's article on the value of listening.
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