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Heckler’s veto in raucous play at Stanford Law School, federal judge’s speech shouted down — First Amendment News 371
What a raucous spectacle it was at Stanford Law School last week as an unruly group loudly berated a federal judge while an associate dean intervened only to lecture the judge. Immediately thereafter, protestors walked out while leaving their signs near the lectern where the invited jurist was to speak — and all of this before the judge had a chance to speak.
In the vernacular of the day: It was a “shit show” at a prestigious law school. If you doubt it, just watch the video below. As you will see from what follows, there were policies not followed, apologies given — though questioned — and blame passed around on all sides. All of which raises the question: Has free speech on campuses come to this? If so, the ideal of civil discourse in America is quickly dying. Is anyone delivering that message in their First Amendment classes?
Read the transcript of it all here.
What to make of it all?
“For many people at the law school who work here, who study here, and who live here, your advocacy — your opinions from the bench — land as absolute disenfranchisement of their rights.”
“Me and many people in this administration do absolutely believe in free speech. We believe that it is necessary. We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people — that one way to do that is with more speech and not less. And not to shut you down or censor you. . . . And that is a policy and a principle that I think is worthy of defending, even in this time. . . . And again, I still ask: Is the juice worth the squeeze?” — Associate Dean Tirien Steinbach
* * * *
“[S]taff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” — Stanford President Marc Tessier-Lavigne and Law School Dean Jenny Martinez
* * * *
“[T]he apology promises to take steps to make sure this kind of disruption does not occur again. Given the disturbing nature of what happened, clearly concrete and comprehensive steps are necessary. I look forward to learning what measures Stanford plans to take to restore a culture of intellectual freedom.” — Judge Kyle Duncan
An overview of Stanford’s policies
Because the rights of free speech and peaceable assembly are fundamental to the democratic process, Stanford firmly supports the rights of all members of the University community to express their views or to protest against actions and opinions with which they disagree.
The following regulations are intended to reconcile these objectives.
It is a violation of University policy for a member of the faculty, staff, or student body to:
- prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies, the conduct of University business in a University office, and public events.
- obstruct the legitimate movement of any person about the campus or in any University building or facility.
FIRE enters the fray
- FIRE Letter to Stanford University (March 10)
FIRE is once again deeply concerned about the state of free expression at Stanford University after a student-organized Stanford Law School speech by U.S. Circuit Judge Stuart Kyle Duncan was disrupted last night, with at least one report that his remarks ended some 40 minutes earlier than planned as a result. The apparently successful exercise of the heckler’s veto by attendees determined to disrupt Judge Duncan’s remarks, at a Federalist Society-sponsored event, is troubling enough. But FIRE must also express our deep concern regarding Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach’s temporary removal of Duncan from the podium—against his wishes—to offer commentary appearing to promote censorship. Dean Steinbach pinballs between praising free speech, accusing Judge Duncan of “harm,” and asking him if what he has to say is important enough to justify upsetting students. She ultimately suggests Stanford may wish to consider abandoning its free expression commitments altogether to prevent the “harm” allegedly inherent in hearing views with which one may disagree in the future.
[ . . . ]
As FIRE has reminded you in our recent correspondence, Stanford promises robust expressive rights to students and faculty. Stanford is likewise obligated by California’s Leonard Law to respect its students’ expressive rights. When hecklers disrupt planned speeches on a university campus, they not only infringe a speaker’s right to deliver their message, but also the rights of anyone in the Stanford community who wishes to receive that message. As the late Supreme Court Justice Thurgood Marshall famously wrote: “The freedom to speak and the freedom to hear are inseparable; they are two sides of the same coin.” [footnotes omitted]
Of course, not all protest during a speech is sufficiently disruptive; for example, protestors peacefully holding signs in the back of an auditorium or offering fleeting commentary are unlikely to be so disruptive as to prevent an event from proceeding. However, when protesters talk over a speaker or cause other disruption such that the event is functionally unable to proceed as planned, Stanford must use all the resources at its disposal to prevent this pernicious form of mob censorship. Would-be disruptors must know Stanford will not tolerate the heckler’s veto and that the university will take swift action to remove anyone who violates the university’s clear policies to that effect. Dean Steinbach’s comments caught on video make it woefully unclear as to whether Stanford will stand up for speech or not.
Stanford president and dean of law school apologize to Judge Duncan
We write to apologize for the disruption of your recent speech at Stanford Law School. As has already been communicated to our community, what happened was inconsistent with our policies on free speech, and we are very sorry about the experience you had while visiting our campus.
We are very clear with our students that, given our commitment to free expression, if there are speakers they disagree with, they are welcome to exercise their right to protest but not to disrupt the proceedings. Our disruption policy states that students are not allowed to “prevent the effective carrying out” of a “public event” whether by heckling or other forms of interruption.
In addition, staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.
We are taking steps to ensure that something like this does not happen again.
With our sincerest apologies again [signatures]
Judge Duncan responds (via Ed Wheelan)
I particularly appreciate the apology’s important acknowledgment that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” Particularly given the depth of the invective directed towards me by the protestors, the administrators’ behavior was completely at odds with the law school’s mission of training future members of the bench and bar.
I hope a similar apology is tendered to the persons in the Stanford law school community most harmed by the mob action: the members of the Federalist Society who graciously invited me to campus. Such an apology would also be a useful step towards restoring the law school’s broader commitment to the many, many students at Stanford who, while not members of the Federalist Society, nonetheless welcome robust debate on campus.
Finally, the apology promises to take steps to make sure this kind of disruption does not occur again. Given the disturbing nature of what happened, clearly concrete and comprehensive steps are necessary. I look forward to learning what measures Stanford plans to take to restore a culture of intellectual freedom.
National Lawyers Guild defends hecklers
The members of NLG’s Board write to express our firm support and admiration for every single person involved in planning or enacting the protest of the Federalist Society’s event on March 9th with Judge Kyle Duncan of the Fifth Circuit. This protest represented Stanford Law School at its best: as a place of care for vulnerable people, and a place to challenge oppression and bigotry in all their forms, including on the federal bench. NLG’s strong moral commitment to providing support to political activists, protestors, and movements for social change is at the center of our wholehearted support for the protest.
Judge Duncan’s behavior at the event amply justified the protests, if more justification than his career was needed. His conduct was abhorrent. He yelled at protestors and called students names. He refused to answer students’ genuine questions about his legal decisions. He entered the room recording all the protestors in the stairwell, including by placing his phone inches away from several protestors’ faces. He repeatedly referred to students as “idiots” and “absolute idiots.” He responded to a student’s question, which she framed in part by making reference to having been sexually assaulted in college, by saying “nice story . . . that’s not a question.” He belittled a university administrator who attempted to calm down the protestors to allow him to speak, repeating several of his statements mockingly.
It is ironic that Judge Duncan repeatedly criticized protestors for being “disrespectful.” Judge Duncan’s record, jurisprudence, views, and personal conduct are beyond “disrespectful”: they are as antithetical to the social justice mission of NLG as it is possible to be.
A ‘Stern’ take on Judge Duncan’s purported ‘plan’
- Mark Joseph Stern, “A Trump Judge’s Tantrum at Stanford Law Was Part of a Bigger Plan,” Slate (March 13)
Judge Stuart Kyle Duncan went to Stanford Law School looking for a fight, and he got one. The ultra-conservative judge, a Donald Trump nominee, ostensibly visited the campus on Thursday to talk about “COVID, guns, and Twitter” at an event sponsored by the Stanford Federalist Society. But once in the classroom, he immediately faced protesters who shouted questions about his hostility to civil rights, especially LGBTQ equality. Duncan came prepared, striding into the room with his camera out to film the event so he could “make a record” of their demonstration.
After an administrator and a student leader quieted the protesters, the judge skipped his speech and moved directly to Q&A. He then insulted various students (“you are an appalling idiot,” the judge told one) while refusing to engage with their questions. After departing, the judge embarked upon a conservative media tour, declaring that the “coddled law students” behaved like “dogshit” and urging Stanford to discipline them.
Duncan got the attention he so obviously wanted, drawing instant support from GOP senators and Fox News. He emerged as a folk hero on the right, the audacious judge who punched back at crybullies on the left who tried to silence his free speech. Yes, his behavior was injudicious; that was the point. The judge has likely concluded that conducting himself like a truculent provocateur will increase his odds of advancing to the Supreme Court under a future Republican president.
“In 2016, Duncan referred to Obergefell v. Hodges, the U.S. Supreme Court decision that recognized a constitutional right to same-sex marriage, as an ‘abject failure’ that ‘imperils civic peace.’” — Jay Willis, San Francisco Chronicle (March 14)
For further information
- Jay Willis, “Trump Judge Kyle Duncan got exactly what he wanted out of Stanford: Fame,” San Francisco Chronicle (March 14)
- Sabrina Conza and Alex Morey, “Stanford Law students shout down 5th Circuit judge: A post-mortem,” FIRE (March 13)
- Josh Blackmun, “Is The DEI Juice Worth The Squeeze?” The Volokh Conspiracy (March 11)
- Aaron Sibarium, “‘Dogs—t’: Federal Judge Decries Disruption of His Remarks by Stanford Law Students and Calls for Termination of the Stanford Dean Who Joined the Mob,” Washington Free Beacon (March 10)
- Ed Whelan, “Crybullies at Stanford Law School Threaten Free Speech,” National Review (March 10)
- David Lat, “Yale Law Is No Longer #1—For Free-Speech Debacles,” Original Jurisdiction (March 10) (a valuable deep-dive into the incident)
Massachusetts high court protects state constitutional right to be ‘rude’ in town meetings
- Alicia Bannon, “Massachusetts protects right to be ‘rude’ in town meetings,” State Court Report (March 14)
Last week, the Massachusetts Supreme Judicial Court decided Barron v. Kolenda, a case in which a resident of Southborough was ordered to leave a town meeting after (correctly) accusing the board of selectmen of violating open meeting laws, characterizing them as spending like “drunken sailors,” and describing one of the members as “a Hitler.”
The state supreme court declared unconstitutional the town’s public comment policy, which requires remarks in public meetings to be “respectful and courteous, free of rude, personal, or slanderous remarks.” Civility, the court held, can’t be required in a public comment session of a governmental meeting.
- Barron v. Kolenda (MA., March 7, 2023, per Scott L. Kafker, J.)
After objecting to open meeting law violations and other municipal actions in a public comment session at a meeting of the board of selectmen of Southborough (board), the plaintiff Louise Barron was accused of violating the board’s “public participation at public meetings” policy (public comment policy or civility code) and eventually threatened with physical removal from the meeting. Thereafter, she and two other plaintiffs brought state constitutional challenges to the policy, claiming in particular that she had exercised her constitutionally protected right under art. 19 of the Massachusetts Declaration of Rights “to assemble, speak in a peaceable manner, and petition her town leaders for redress.”
[ . . . ]
[W]e conclude that the public comment policy of the town of Southborough (town) violates rights protected by art. 19 and, to the extent it is argued, art. 16. Under both arts. 19 and 16, such civility restraints on the content of speech at a public comment session in a public meeting are forbidden. Although civility, of course, is to be encouraged, it cannot be required regarding the content of what may be said in a public comment session of a governmental meeting without violating both provisions of the Massachusetts Declaration of Rights, which provide for a robust protection of public criticism of governmental action and officials. What can be required is that the public comment session be conducted in an “orderly and peaceable” manner, including designating when public comment shall be allowed in the governmental meeting, the time limits for each person speaking, and rules preventing speakers from disrupting others, and removing those speakers if they do. We have concluded that such time, place, and manner restrictions do not violate either the right to assembly under art. 19 or the right to free speech under art. 16.
[ . . . ]
Furthermore, when Barron alleged that the chair threatened to have her physically removed from a public comment session of a public meeting after she criticized town officials about undisputed violations of the open meeting laws, she properly alleged that he threatened to interfere with her exercise of State constitutional rights protected by arts. 16 and 19 in violation of the MCRA. There is also no qualified immunity, as there is a clearly established State constitutional right under arts. 16 and 19 to object (and even to do so vigorously) to the violation of the law by government officials in a public comment session of a public meeting.
Audio documentary on the trials and tribulations of J.K. Rowling
- “The Witch Trials of JK Rowling,” The Free Press (2023) (audio series)
“An audio documentary that examines some of the most contentious conflicts of our time through the life and career of the world’s most successful author.”
About the show
The Witch Trials of J.K. Rowling is an audio documentary that examines some of the most contentious conflicts of our time through the life and career of the world’s most successful author. In conversation with host Megan Phelps-Roper, J.K. Rowling speaks with unprecedented candor and depth about the controversies surrounding her—from book bans to debates on gender and sex. The series also examines the forces propelling this moment in history, through interviews with Rowling’s supporters and critics, journalists, historians, clinicians, and more.”
Megan Phelps-Roper is a writer, host, and producer with The Free Press. Born and raised in the Westboro Baptist Church, Megan left a life of religious extremism in 2012. She has spent the past decade using her experiences to work with schools on anti-bullying campaigns, with law enforcement organizations investigating deradicalization, and with tech companies on the intersection of safety, free speech, and the value of dialogue across ideological divides. Her journey has been chronicled in The New Yorker, a trio of BBC documentaries, a TED talk, and her memoir Unfollow. [See also Snyder v. Phelps (2010)]
- Megan Phelps-Roper, “I grew up in the Westboro Baptist Church. Here's why I left,” TED (2017)
Megan Phelps-Roper was raised in the Westboro Baptist Church, the Topeka, Kansas church known internationally for its daily public protests against members of the LGBT community, Jews, the military and countless others. As a child, teenager and early 20-something, she participated in the picketing almost daily and pioneered the use of social media in the church. Dialogue with “enemies” online proved instrumental in her deradicalization, and she left the church and her entire way of life in November 2012. Since then she has become an advocate for people and ideas she was taught to despise — especially the value of empathy in dialogue with people across ideological lines. She speaks widely, engaging audiences in schools, universities, faith groups, and law enforcement anti-extremism workshops.
Comedian Ronnie Marmo, et al., on legacy of Lenny Bruce
- Evan Dawson and Megan Mack, “Discussing comedy, free speech, and the legacy of comedian Lenny Bruce,” WXXI News, NPR affiliate (March 13)
A new production at the JCC Center Stage tells the story of comedian Lenny Bruce. Considered both groundbreaking and controversial, Bruce was known for comedy that pushed boundaries; he was charged numerous times with obscenity, going all the way to the Illinois Supreme Court.
This hour, we preview the performance and discuss comedy, free speech, and where the line should be drawn — if at all. Our guests:
- Ronnie Marmo, star of “I’m Not a Comedian . . . I’m Lenny Bruce”
- Todd Youngman, stand-up comedian
- Joe Mantagna, director of “I’m Not a Comedian . . . I’m Lenny Bruce”
- Ronald Collins, retired law professor, co-author of “The Trials of Lenny Bruce,” who worked to secure a posthumous pardon for Lenny Bruce in 2003
- Bob Corn-Revere, First Amendment specialist, partner at Davis Wright Tremaine LLP in Washington, D.C., and attorney who worked to secure a posthumous pardon for Lenny Bruce in 2003
“I’m Not A Comedian . . . I'm Lenny Bruce starring Ronnie Marmo,” Kravis Center (Aug. 11, 2021)
- Brian Niemietz, “Lenny Bruce one-man play returns, but with one big change,” Daily News (Oct. 2, 2022)
New scholarly article on stolen election lies and free speech
- Broderick Betz and Wes Henricksen, “The Stolen Election Lie and the Freedom of Speech,” Penn State Law Review Online (forthcoming)
In an effort to overturn the 2020 presidential election, the losing candidate, Donald Trump, falsely claimed his opponent, Joe Biden, had stolen the election. This involved dozens of baseless allegations, which Trump repeated hundreds of times. These false claims were echoed and amplified by right-wing leaders and media and were endorsed as part of the political platform for hundreds of Republican candidates in the 2022 election. As a result, millions of Americans have been duped into believing the election was not “won” by Biden, but “stolen” by him. This Stolen Election Lie has severely diminished Americans’ trust in the electoral system. It caused a violent mob to attack the United States Capitol in an effort to thwart the peaceful transfer of power. It has also served as the basis for numerous efforts to disenfranchise voters. It has, in short, caused widespread harm to individuals and society. And yet, this brazen scheme to defraud the public has, to date, gone unpunished. In fact, those responsible for spreading it have been rewarded, and many have even won political office.
From a First Amendment perspective, the Stolen Election Lie sits at the intersection of political speech and fraudulent speech. Political speech has the highest free speech protections. Fraudulent speech has no protections. To date, courts and scholars have almost universally treated disinformation campaigns like the Stolen Election Lie as political speech. In this Article, we argue that harmful disinformation that operates as fraud on the public should instead be treated as fraudulent speech. Falsehoods peddled to the public in bad faith and for personal gain should, like other kinds of fraud, enjoy no First Amendment protections.
Those who create and disseminate harmful falsehoods aimed at misleading people should not be rewarded, but punished. Fraud should be regulable, whether aimed at one victim or at millions. Although this principle is simple to articulate, crafting a workable framework of speech restrictions to capture fraud on the public poses significant challenges. Nevertheless, given the harm resulting from allowing unfettered fraud on the public, it is urgent that we find ways to close the loophole that allows people to profit off of manipulating public opinion by spreading intentionally false speech. Closing this loophole will further numerous important free speech policy aims, and will also help protect against future attempts to thwart democracy.
‘So to Speak’ podcast: Ilya Shapiro on Fox/Dominion and ‘cancel culture’
Ilya Shapiro joins the show to discuss the fireworks in the Fox/Dominion defamation lawsuit, his recent speaking appearance at the University of Denver, and his “cancel culture nightmare” at Georgetown University.
Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. He previously (and briefly) served as executive director and senior lecturer at the Georgetown Center for the Constitution and as a vice president at the Cato Institute.
More in the news
- Eugene Volokh, “Beauty Pageants Have First Amendment Right to Limit Contestants to ‘Natural Born Females’: No Rehearing En Banc,” The Volokh Conspiracy (March 14)
- Julia Mueller, “Fox News’ Howard Kurtz calls Dominion lawsuit a ‘major test of the First Amendment’,” The Hill (March 12)
- Ronald Krotoszynski, Jr., “Proposed parading rules run afoul of First Amendment,” Nola.com (March 12)
- Susanna Granieri, “An ‘Assault on the First Amendment’: Recent Legislation in DeSantis’ Florida,” First Amendment Watch (March 10)
- Dennis Hetzel, “TikTok ban could cause collision between national security and First Amendment,” The Free Speech Center (March 10)
- Angel Eduardo, “Another day, another beloved children's book series sanitized by publishers,” FIRE (March 10)
- Ken Paulson, “Book review: Campus speech suppression: ‘crisis’ or ‘canards’?” The Free Speech Center (March 9)
2022-2023 SCOTUS term: Free expression and related cases
- 303 Creative LLC v. Elenis (argued Dec. 5)
- Jack Daniel’s Properties, Inc. v. VIP Products LLC (argued March 22)
- United States v. Hansen (to be argued, March 27) (Volokh commentary here)
- Counterman v. Colorado (to be argued, April 19)
- Vidal v. Elster
- Keister v. Bell
- O’Connor-Ratcliff v. Garnier
- U.S. v. Hernandez-Calvillo
- Price v. Garland
- Moody v. NetChoice, LLC
- NetChoice, LLC v. Moody
- Florida v. NetChoice
- Klein v. Oregon Bureau of Labor and Industries
- Novak v. City of Parma (cert. denied)
Immunity under Foreign Sovereign Immunities Act
- NSO Group Technologies Limited v. WhatsApp Inc. (cert. denied)
Liability Anti-Terrorism Act
- Twitter v. Taamneh (argued Feb. 22)
Section 230 immunity
- Gonzalez v. Google (argued Feb. 21)
- Morgan v. Arizona
- Novak v. City of Parma
- Soto v. Texas
- Moore v. Texas
- Chen v. Texas
- Barton v. Texas
- Arkansas Times v. Waldrip
- My Pillow v. U.S. Dominion (news story)
- Kowall v. Benson
- Tofsrud v. Spokane Police Department
- Swanson v. Griffin County
FAN 370: “New and forthcoming books spotlight the dangers of a ‘culture of secrecy’”
This article is part of First Amendment News, an editorially independent publication edited by professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of professor Collins.
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