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Stanford Law School dean makes powerful commitment to free expression after shout-down controversy

Jenny Martinez’s 10-page tour de force on free speech in higher ed addresses the backlash and paves a path forward. Time will tell if Stanford Law students will take it.
Stanford University dean Jenny Martinez

Stanford Law School Dean Jenny Martinez

Stanford was thrust into the spotlight for all the wrong reasons on March 9 when students, enabled by Stanford administrators, shouted down Fifth Circuit Court of Appeals Judge Stuart Kyle Duncan. Two days later, Stanford Law School Dean Jenny Martinez and University President Marc Tessier-Lavigne apologized to Duncan for the university’s failure to uphold its own policies, which mandate against such disruptions. 

Though she received intense backlash from some students for the apology, Martinez said yesterday she isn’t backing down. In a 10-page statement strongly re-affirming Stanford’s commitment to free expression, Martinez explains in detail how Duncan’s hecklers violated Stanford policy, mapping out how a cooperative relationship between free expression and diversity will need to work, and outlining specific steps to create a better culture for open discourse at the school.

She announced that all students will take a mandatory free speech training course this spring, and that DEI Dean Tirien Steinbach, who appeared to encourage protesters to de-platform Duncan, is “on leave.”

Martinez lays down the law

The letter opens by quoting Stanford’s Statement on Academic Freedom, which says, “Expression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.”

It dissects the claim that the hecklers were simply exercising their own free speech rights, citing legal precedent that establishes the difference between peaceful protest in a public forum, and disrupting the free speech rights of others in a limited one. 

“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’s not “counter-speech.” It’s censorship. Exercising one’s right to free speech must not entail denying others that same right.

A failure to address the incident would also incentivize illiberal tactics like deplatforming and violence.

But students do have the right to protest. And Martinez rightly states that students may object to speakers in a variety of ways, including by peacefully protesting nearby, or expressing themselves at a speaking event by, for example, holding signs — “as long as the methods used do not ‘prevent or disrupt the effective carrying out of a University function or approved activity.’” 

She also establishes the relationship between free speech and diversity, the value to which the hecklers and Dean Steinbach appealed, masterfully countering the common argument that censorship protects marginalized groups from harm:

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.

Stanford associate dean for DEI Tirien Steinbach (left) speaks to Judge Kyle Duncan (right)

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Instead, Martinez advocates for diversity initiatives at Stanford to be “implemented in ways that are consistent with its commitment to academic freedom and free speech,” suggesting that everyone, including guests of The Federalist Society, should be allowed to express their views “free of coercion.”

As FIRE has long said, free expression and inclusion need not be at odds. In fact, they’re complementary. Free expression is particularly important for the most marginalized, because it’s the basis by which they are able to express themselves even to those with more power or influence. As FIRE’s Alex Morey said in a video about the incident, “The alternative [to upholding free speech for all] is that only one set of views are acceptable in a given university or college.” 

And that’s not inclusive at all.

Stanford Law promises changes to protect free speech

Importantly, the strong statements in the letter are backed up with specific plans to teach the significance of free expression to Stanford Law students. The law school will hold a “mandatory half-day session” for all students “on the topic of freedom of speech and the norms of the legal profession.” 

Appropriately, students will be “free to disagree” with the session material.

However, to prevent a similar scenario from unfolding again, Martinez states that “all staff will receive additional training” regarding enforcing university rules pertaining to guarding against and managing event disruptions.

Martinez said she’s electing not to punish the student hecklers precisely because of the critical role administrators, particularly Dean Steinbach, played in facilitating the students’ disruptive behavior:

When a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.

Since this incident was first reported, FIRE has pushed for accountability, understanding that failing to enforce these speech-protective policies not only jeopardizes student and faculty rights, but also hampers the functioning of a university as a truth-seeking engine. A failure to address the incident would also incentivize illiberal tactics like deplatforming and violence. So we are pleased to see the law school making significant strides to ensure future events will proceed without disruption. 

We’re particularly glad that Stanford Law plans to educate its students and faculty about First Amendment law and free speech culture. We’re happy to assist Stanford and all universities in providing relevant instructional materials on all things free expression.

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FIRE defends the rights of students and faculty members — no matter their views — at public and private universities and colleges in the United States. If you are a student or a faculty member facing investigation or punishment for your speech, submit your case to FIRE today. If you’re a faculty member at a public college or university, call the Faculty Legal Defense Fund 24-hour hotline at 254-500-FLDF (3533). If you’re a college journalist facing censorship or a media law question, call the Student Press Freedom Initiative 24-hour hotline at 717-734-SPFI (7734).

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