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‘So to Speak’ podcast transcript: The Stanford shout-down with David Lat
Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: Okay. Welcome back to So to Speak, the free speech podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino, and today, we’re gonna be discussing a free speech controversy on a college campus that has been very much in the news. We’re talking here about Stanford University Law School and the shout down – or maybe you don’t think it’s a shout down, depends what your perspective is of Judge Kyle Duncan, of course.
Kyle Duncan is a judge on the Fifth Circuit Court of Appeals, and he was set to appear at Stanford on March 9th. Did appear to talk about the Fifth Circuit’s conversation with the Supreme Court, so to speak, on issues related to guns, COVID, social media, and other matters. He didn’t get very far into that speech before it devolved into more or less a shouting match. And I'm really pleased to have on the podcast today someone who’s done yeoman’s work in covering this controversy. He was out with some of the initial reporting on the event over at his sub-stack called Original Jurisdiction, and that, of course, if David Lat.
He is a writer and lawyer who writes commentary about law and the legal profession for his sub-stack Original Jurisdiction. David was also the founder of the legal news website Above the Law, and served as an editor over there until 2019, and prior to his career as a journalist, David was a practicing lawyer. He received his law degree from Yale Law School in 1999. David, welcome on the show.
David Lat: Thanks for having me, Nico.
Nico Perrino: So, David, I heard you on Advisory Opinions with former FIRE president, in fact, David French and Sara Isgur, talking about the Stanford controversy, and I was really just impressed, not only with your appearance there, relaying the facts and some of the debate surrounding the Stanford controversy, but as well as your, I think it’s three posts now on Original Jurisdiction, going over all the facts of the case, including revealing, for what I believe was the first time, the full audio from Judge Kyle Duncan’s appearance at Stanford Law School on March 9th.
So, David, if you would, just for our listeners who haven’t heard you discuss this before, I'm assuming most of them are familiar with the controversy, even if just in broad brush strokes at this point, can you describe what happened –
David Lat: Sure.
Nico Perrino: – at Stanford?
David Lat: As you mentioned, Nico, it’s quite the saga, and I've written three separate stories on it. So, I would try to keep this somewhat abbreviated. I’m guessing that most of the listeners to the FIRE podcast are unfortunately familiar with what happened at Stanford Law on March 9. Judge Kyle Duncan, as you mentioned, is a judge on the Fifth Circuit Court of Appeals. He is based out of Louisiana. And on March 9, he appeared before the Stanford Federalist Society, the group of conservative and libertarian law students and lawyers that invited him to speak at Stanford. Judge Duncan is controversial for a number of reasons.
Before he became a judge, he actively litigated on the socially conservative side of various issues related to marriage equality or same-sex marriage, transgender rights, etc. And as a judge, he has proven himself conservative. He issued a ruling, for example, declining to grant a prisoner’s request to be identified by her desired pronouns.
So, Judge Duncan was not a popular figure at Stanford, and before he appeared, there was a sense that there might be some trouble because members of Outlaws, the LGBTQ+ group at Stanford and the National Lawyers Guild, which is a left wing group at Stanford put up posters attacking Judge Duncan, some of his rulings, some of his pre-bench litigation work, and also attacking the Federalist Society at Stanford for inviting him. So, when he appeared, there were about 100 noisy protesters outside the room, and as he was being escorted into the room by the president of the Stanford Federalist Society, they were shouting at him.
Over the weekend, Judge Duncan revealed, in a Wall Street Journal op-ed that one of the things the protesters shouted at him was, “We hope your daughters get raped,” meaning that we hope your daughters get raped and get pregnant, and have to navigate a world in which abortion is no longer a federal constitutional right because one of the issues, of course, that Judge Duncan has worked on over the years has been abortion or things related to abortion.
In any event, after these protesters were shouting at people going into the room, including calling out individual members of the Federalist Society who were entering the room, they followed Judge Duncan and the members of Stanford Fed Soc into the room. And as Judge Duncan started to speak, they were booing, and jeering, and repeatedly interrupting him, and they made it very, very difficult for him to continue with his prepared remarks. At a certain point, maybe about seven or so minutes in, according to the audio recording I posted, Judge Duncan started to give it back to the protesters.
He started attacking them for how they were receiving him. He called them idiots. He made a number of other harsh remarks. And of course, that only incensed them further, and they started jeering, and interrupting, and insulting him even more. And at a certain point, it became very, very difficult to proceed. At a certain point, maybe around 10 or 11 minutes into his remarks, Judge Duncan asked for some help from an administrator to quiet the crowd down. And at this point, Stanford’s dean or associate dean for Diversity, Equity, and Inclusion, Tirien Steinbach, appeared. She identified herself and she proceeded to give a speech that ran around six minutes.
And at first, she talked about Stanford’s policy on free speech and how they welcome people with a variety of viewpoints, although she did say, “It pains her to have to welcome Judge Duncan,” because also in her speech, she attacked a lot of his work as a lawyer and judge and said that his work had inflicted real harm on members of the audience. And the theme she kept on going back to is, “Is the juice worth the squeeze?”
She kept on asking this rhetorical question, and by that, she meant, “Is it really worth it, do you have such great insights on guns, and COVID, and juris prudence to justify your coming here and causing so much pain and hurt to the people in this audience? Is the juice worth the squeeze?” So, at a certain point, she finished, about six minutes later, and she turned the floor back over to Judge Duncan, but again, the jeering, and catcalling, and ad hominem attacks continued. And by the way, they were quite quiet for Dean Steinbach. And so, at a certain point, Judge Duncan said, “Fine. Let’s go straight to Q & A.” He ditched his prepared remarks.
We never really got to hear even a significant portion of those prepared remarks, and in the Q & A, it just became more combative. They asked aggressive questions, many of them not particularly pleasant. He gave aggressive answers back. And the event just devolved and it ended about 35 minutes before its scheduled end time. So, that is what went down at Stanford Law School on March 9.
Nico Perrino: Yeah. Well, let’s take it piecemeal, right. So, at the start of the event, the jeering almost begins from the get-go.
David Lat: Yeah.
Nico Perrino: Is that right?
David Lat: Pretty much right from the start. As he takes the podium and starts to speak, we hear gagging noises.
Nico Perrino: And one of the things you see on Twitter is that this was protected speech. This was just counter speech, so to speak. In fact, some of the students, and we’ll get to this, I think, a little bit later, once the dean of the law school, Jenny Martinez, had issued kind of a statement after this all unfolded, more or less saying that this was a violation of Stanford’s disruption policy. She also happens to teach a class at Stanford Law School, and the students objecting to her statement plastered her whiteboard with pieces of paper, some of which said, “Counter speech is free speech.”
So, how are we supposed to think about Stanford law students attending a public speech, jeering, gagging, holding up signs, effectively, based on the audio, preventing the speech from moving forward in the way that Judge Duncan, and I think Fed Soc, hoped it would?
David Lat: So, I reject the contention that shouting down or, if you don’t wanna call it a shout down, interrupting extensively, repeatedly, sustainedly, a speaker is a legitimate form of counter speech. Stanford University’s policies make clear that disrupting the effective carrying out of a public event, as the students did here, violates Stanford’s policies. And even though Stanford is a private institution, its policies, like those of many universities, very much reflect First Amendment values of discourse, and conversation, and respect for other viewpoints, and the right to listen as well as the right to speak.
And of course, we don’t have to get into this legal tangent, but Stanford is also subject to the Leonard Law, which is a California law that applies to certain free speech protections to students at private nonreligious schools like Stanford. I would actually refer people to the great Q & A or dialogue that Greg Lukianoff and Nadine Strassen did. I actually posted on the FIRE website, for why heckling, and interrupting, and jeering, and booing a speaker are not legitimate forms of counter speech. This was a duly authorized event in an academic environment.
It’s one thing if a random person is shouting on a street corner, and you wanna shout at them back, but when we have an academic environment, whether it’s a classroom or a public event, there are certain rules that are analogous to time, place, and manner rules in the First Amendment about who has the floor, and who gets to speak, and how, if you wanna speak, how you go about doing so. So, it was totally fine for the students to ask questions in the Q & A. Many of their questions were appropriate. That was a legitimate way of combating Judge Duncan’s speech.
They could have held an event before, or after, or during his event that would offer contrasting or competing ideas. That is a legitimate form of counter speech. They could’ve quietly held up signs, as long as the signs didn’t disrupt anybody’s view of the speaker, which they were doing, but the jeering, the catcalling, the booing, the hissing, the gagging, that is not an acceptable or a legitimate form of counter speech.
Nico Perrino: Yeah. One of the things that have happened surrounding this controversy is there’s been a lot of semantic discussion about what is a shout down versus what is protected heckling. FIRE has always been of the position, and I think as you just articulated, David, that quietly holding protest signs in the back of the room rather than the front of the room where they prevent the audience from seeing the speaker, or brief intermittent jeering or shouting things out, so long as it doesn’t significantly disrupt the event.
But what you heard in this case was a speaker invited to give prepared remarks on a particular subject who was not able to get more than a sentence or two out without being heckled or jeered, which is a substantial disruption of the event. It was not the event that Fed Soc hoped they would have or the judge hoped that he would have in choosing to attend the Stanford event. And private groups, such as the Stanford Fed Soc, have the right to kind of organize event as they fit. Now, one of the things you’ve heard from critics on Twitter or those at Stanford is this is an article three judge, and they have no right, as article three judges, to be immune from criticism, right, to give polite speeches in polite company.
I reject that fundamentally, for all the reasons I just articulated, is that groups like the Federalist Society have the right to host an event, but many people truly believe that this was and should be protected counter speech at Stanford, and that the judge was able to ultimately speak, albeit not in the format that he had hoped, but you have no right to speak in the format that you had hoped.
And part of me just feels like their understanding what FIRE is saying or what free speech on campus advocates are saying, but they just have a fundamentally different conception of freedom of speech perhaps, but that conception that they're articulating, where this is just counter speech is effectively whoever the loudest voice in the room is, whoever is the mightiest, whoever has the most people in their corner get to speak. And you, lonely speaker, or you, 12 members of the Federalist Society, you're just never gonna have a right to speak because we’re always gonna be able to shout you down.
And I just don’t see how that sort of environment in the academy is conducive to the goals of the academy, which is the preservation, dissemination, and creation of knowledge, as opposed to the Speaker’s Corner in London, where it’s a constant shouting match, right?
David Lat: Exactly. Well, I think the other thing I would just remind people of, and this is a point that Greg and Nadine make in their conversation on the FIRE website, is if you take the approach of this is speech, too, it’s essentially as you said; the loudest voices win. It’s a majoritarian approach to speech. But something like free speech is protected from majoritarianism precisely because we want to have minority voices in the conversation too. And on a campus like Stanford, which is left-leaning, those minority voices happen to be conservative or libertarian. But imagine if we applied this to the world outside the campus, and you had a person who was trying to make a progressive or liberal speech.
Would you want them to be shouted down just because the town or the state happens to be conservative? I don't think so. One of the great quotations explaining why this is not a legitimate form of counter speech comes from Frederick Douglas. He was trying to have an abolitionist event, and they got shouted down because the abolitionists in that town or city were the minority. And again, I don't think anyone wants that version of the majority wins or the loudest voices win because sometimes you have the loudest voices, but sometimes you don’t.
Nico Perrino: Yeah. I mean, I think you would understand this, too, in the context of most other venues. For example, you go to see a Broadway play. Does the audience have the right, if they don’t like the play, to just constantly jeer without getting thrown out? One of the things that FIRE sometimes does is refer to these sorts of things as an attempted heckler’s veto. That is the idea that you have people in the audience who are using heckling to try and veto the speaker, that is prevent them from speaking and preventing willing audience from listening.
And one of the critiques that we’ll get is, “Well, the only people who can affect a heckler’s veto is the government, if they sort of sanction the heckling by preventing the speaker from speaking.” FIRE refers to heckler’s vetoes in a more colloquial sense, often, which is the use of heckling to veto a speaker, much like what you’d do with the assassin’s veto surrounding Charlie Hebdo or Salman Rushdie, for example. There are assassins who are seeking to use assassination to veto. Obviously, this is not the same as that, but it’s the same sort of colloquial sense, that you can affect a veto in that way.
Now, people say, “But speakers are not the government. They don’t have the ability to veto a speech,” but this goes back to what we were saying earlier, right, which is there are other ways to use coercion, aside from the government, to sort of veto a speech. So, David, I want to talk a little bit about one of the other critiques that has happened here, which is that the judge didn’t comport himself in a judgelike manner during the speech, and therefore, was sort of just egging the students on. This is something he wanted. He went there trying to get a rise out of the students. What do you make of that?
David Lat: So, I don’t really think that’s quite right, in the sense that it was not his intention, it seems to me, to go there and just be a rabble rouser. He actually did have a prepared speech, and it was about the conversation or dialogue between the Supreme Court and the Fifth Circuit on a number of hot-button issues where the Fifth Circuit has issued some fairly meaty and substantial rulings, including social media laws like the ones passed by Florida and Texas, and issues about the COVID vaccine, and the OSHA mandate for employers to require vaccination of their employees. That was something he started to talk about, and then he got interrupted.
So, he did have a real speech, contrary to one rumor going around that, no, he didn’t have a speech, and he was just looking to make trouble. Now, that said, I do wish that the judge had conducted himself in a more restrained way. He certainly gave it back to the protesters and called them names, just as they called him names. And that was probably not ideal. I'm not going to get on a high horse here and judge him because I've never been in that situation of 100 angry people yelling at me, so I really am not going to judge him too harshly, but in an ideal world, I think he would have acted in a more restrained way.
What is frustrating, in a way, is – I think because he did talk back at the hecklers, we now find ourselves mired in these “what about” type arguments, where they say, “Well, what about Judge Duncan?” The fundamental issue here is the violation of Stanford’s policies by people who engaged in a heckler’s veto. That’s the most important thing. Is it also true that an Article III judge could have conducted himself better? Yes. I don’t dispute that. I don't think most people would dispute that. Whether or not you think it was justified, we can argue, but he definitely could have conducted himself better. But that’s not really the issue, from a free speech perspective.
Nico Perrino: No. If you look at your full audio recording and look at the transcription, it’s about eight minutes and 43 seconds that Judge Duncan veers off of his prepared remarks to say, “It is appalling. And obviously, in this school, the inmates have gotten control of the asylum,” and that’s where the event sort of devolves into a shouting match between Judge Duncan and the student hecklers. Prior to that, it was mostly the students interrupting every sentence or two what he was saying.
Now, Judge Duncan separately has said that he was assured by the university administration that if this heckling were to begin, so much so that he couldn’t actually deliver his prepared remarks, that the administrators would issue one warning and then escort students out of the room, effectively. That didn’t appear to happen.
David Lat: No. And there were about five administrators in the room, Dean Steinbach and the dean of students, and other administrators, including a student relations representative, and nobody really intervened until Judge Steinbach got up to give a speech of her own, taking up the Federalist Society’s time to criticize their own speaker, which Dean Martinez later criticized, and I think understandably so. So, no, no administrators came to the aid of Judge Duncan, and even after Dean Steinbach gave the floor back to the judge, the hecklers just continued to become even more disruptive. So, the Stanford administration did not protect the speaker here.
Nico Perrino: Yeah. I had listened to Judge Duncan talking on Advisory Opinions. He knew there might be some protest, but he didn’t anticipate the heckling. It sounds like he took Stanford at its word that were there to be disruptive heckling that they would step in and enforce their policies. Let’s turn now to – not judge, excuse me – Stanford associate dean for diversity, equity, and inclusion, Tirien Steinbach, and her prepared remarks. So, at about, what is it, 10 minutes or so into the event, 12 minutes, somewhere between 10 and 15 minutes, Judge Duncan calls for an administrator. And there’s some confusion because there’s video of this.
It seems like Judge Duncan was looking to talk with an administrator privately about how to get the event on track, but Dean Steinbach effectively said no, kind of pushed him to the side, metaphorically speaking. Of course, she didn’t actually physically push him, and decided to take to the podium where she said, “I have something written down, and I'm uncomfortable up here,” and then she goes on to share those remarks. Let’s talk a little bit about those remarks.
She begins her remarks by saying, “I'm uncomfortable up here. I don’t say that for sympathy. I'm just saying I'm deeply, deeply uncomfortable. I'm uncomfortable because this event is tearing at the fabric of this community that I care about and I'm here to support. And I don't know, and I have to ask myself, and I'm not a cynic in asking this, is the juice worth the squeeze? Is it worth it?” She goes on a little bit further, and the Judge Duncan tries to interject. Dean Steinbach says, “Please let me finish.” And then the audience is screaming, “Let her finish. She's speaking. Let her finish.”
Steinbach continues. “There are people, humans and their families, and I'm uncomfortable and it’s uncomfortable to say this to you as a person that’s uncomfortable to say that for many people here, your work has caused harm, has caused harm.” And then Duncan tries to interject again. Dean Steinbach says, “Let me finish,” continues to kind of make the same sort of harm arguments about how this event has torn at the fabric of the community. But then she does issue support or speak in support of free expression.
She says, “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, or censor the student group that invited you here. That is hard. That is uncomfortable and that is a policy and a principle that I think is worthy of defending, even in this time, even in this time.” And she goes on to say, “And again, I still ask, is the juice worth the squeeze?”
Then Judge Duncan says, “What does that mean? I don’t understand.” In the advisory opinion conversation, Judge Duncan says he literally didn’t – had never heard that phrase before. And she clarifies to say, “I mean is it worth the pain it causes and the division that this causes? Do you have something so incredibly important to say about Twitter and guns, and COVID that it is worth this impact on the division of these people who have sat next to each other for years, who are going through what is the battle of law school together so that they can go out into the world and be advocates, and this is the division it caused.”
Continuing a little bit later, she said, “I understand why people feel like the harm is so great that we might need to reconsider those policies,” referring to the free speech policies, “and luckily, they're in a school where they can learn the advocacy skills to advocate for those changes.” Later, she says, “I hope if you learn anything, that you can listen through. If you can listen through your partisan lines, your hyper political lines, and just look and see human beings who are asking you to take care, and like all guests on our campus, we ask that you come with good intentions and respect.”
She continues a little bit further and closes out by saying, “I look out and I don’t ask what is going on here; I look out and say I’m glad this is going on here.” Now, in the day after the controversy, there were some people who thought, “Oh, this is right out of FIRE’s playbook, right? She's asking the students to let the speaker speak, and issuing a call to support free expression, apparently.” But I believe, as you put it previously, what she gives with one hand, she takes with another, right? She later goes on to question the university’s free speech policies.
She does this in the context of supporting the hecklers and what they're trying to accomplish, even if not the tactics that they are using, while condemning the speaker, accusing the speaker of causing harm, and questioning whether the speaker should even continue to speak while sort of cajoling him to stop, and asking at the end, “Again, is the juice worth the squeeze?”
So, I don't think there's ever a context in which FIRE would say, “Oh, yeah. She might have spoken out in favor of free speech, but at the same time, it’s okay that she said the policies should be considered – get considered revising or that this speaker is harmful, and you, speaker, you should reconsider speaking here because look at what you’ve done to this community.” That’s not right out of FIRE’s playbook, nor is this sort of dynamic in which it appears this unfolded, right? The judge was asking the dean or some administrator to come down and talk to him, not to take the platform for effectively six or seven minutes, affecting what some might argue is an administrative heckler’s veto, right?
So, what do you make of kind of this weird dynamic? I think I said on Twitter that I’d never seen anything quite like it, where an administrator comes, takes the floor, and issues a passionate editorialized monologue rather than a “these are our policies and these are gonna be enforced if you don’t let this person speak” sort of situation.
David Lat: Yes, I thought it was bizarre as well, and one of the reasons that Judge Duncan opined both at the event and afterward that he felt it was a “setup” is because Dean Steinbach came with prepared remarks. She was not an administrator who was dealing with some unanticipated interruption on the fly. She had a whole six-minute speech prepared. And as I was saying, as I said before, I do think she took away with one hand what she gave with the other because she says, “Okay. You're here pursuant to our policies, but maybe we need to reconsider those policies.” And so, I do think that there is an issue here about the students.
Some people have said, “Well, the students should be punished and they did violate the policies, absolutely.” But if I'm a student, I'm going to say, “Well, are you going to punish me when basically a dean, an administrator, got up there in the middle of the event and said that maybe these policies need to be reconsidered? Is that really fair when it was almost like an administrator gave her stamp of approval to what we were doing?” Literally, she said, “I'm not asking what’s going on here; I'm saying I'm glad about what’s going on here.” So, again, I really do think she muddied the waters here, and this was not any kind of [inaudible] [00:27:18] defense of free speech or of the Stanford policies.
She explicitly called for those policies to be reconsidered, and as one of my sources who was in the room said, if you read between the lines, and you just kind of got the tenor of her remarks and just sort of the vibe, you had the sense that she really wanted him to just stop, call it right there, go home.
Nico Perrino: Yeah. And the university administration recognized that the speech was probably inappropriate, right?
David Lat: Yes.
Nico Perrino: You had Jenny Martinez, in her initial statement, saying, “However well-intentioned attempts at managing the room in this instance went awry, the way this event unfolded was not in line with our institutional commitment to freedom of speech.” And then you had later, the president of the university as well, as Dean Martinez say, “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.”
That said, I have seen reporting, either from yourself or the Free Beacon, that says that Dean Steinbach, after the event, was asked by Fed Soc members, “What happened here?” and she asserted that nothing the protesters had done violated Stanford’s disruption policies and that the event had been – this is quoting here – exactly what freedom of speech was meant to look like, messy. We already talked about whether student disruptions to the extent that we’ve seen them are protected speech and whether that sort of messy speech should be protected, but what do you make of the fact that you have a dean here saying that no policies were violated.
It seems like she hadn’t looked at Stanford’s policies, which prohibit preventing or disrupting the effective carrying out of a university function or approved activity such as public events. If the function or the event is supposed to be a speech on the Fifth Circuit’s dialogue with the Supreme Court and the effective carrying out of that speech is actually delivering the speech, this by no standard happened.
David Lat: No. It’s interesting. Dean Steinbach, before she entered University administration, was actually a lawyer with the ACLU of Northern California. And so, you would think that somebody who had worked for the ACLU, which in the past, I think, was certainly a great, great defender of the rights of free speech would know better and would understand why the heckler’s veto or the heckling that we saw here is not a legitimate exercise of counter speech. I really am just genuinely baffled. And again, when we’ve seen these situations, the appropriate thing is to just warn the students, state the policy, warn the students and say that if they don’t adhere to the warning, they will be escorted out.
This is what happened last year when Professor Kate Stith at Yale Law School confronted a bunch of angry protestors of Kristen Wagner of the Conservative Alliance Defending Freedom, and Professor Stith warned them. She gave them the one-strike warning, and they left. Now, they went to the hallway and considered to make a huge amount of noise that did disrupt the event from the hallway, but at least they left the room. Here, the protestors stayed in the room, and the policy, even though it was mentioned to them by Dean Steinbach, was also explicitly questioned by Dean Steinbach.
And again, as you mentioned, in a conversation with a smaller group of students, after the event, she has said that the policies were not violated. So, again, if I'm one of the students, or if I'm representing those students, I'm going to say, “Here. We have something punitive. There’s this doctrine in the law that is called the rule of lenity.” Basically, the tie goes to the runner when you're applying something punitive, when you're applying a criminal statute, and here, discipline against the students is analogous to that.
And so, if I'm representing one of these students, I'm going to say, “Isn't there enough ambiguity here that one member of the administration said the policies weren’t violated?” I think she was totally wrong, but I think the students can seize upon this and argue that there’s enough gray here.
Nico Perrino: Yeah. David, are you familiar with the Kalven report from the University of Chicago?
David Lat: Oh, yes, generally. Like, Harry K-A-L-V-E-N, Harry Kalven I think, yeah.
Nico Perrino: Yeah. So, it’s a report published in 1967, after there had been a lot of calls for the university to opine on political and different social issues. It’s called the Kalven Committee Report on the university’s role in political and social action. And it effectively says that the instrument of dissent and criticism is the individual faculty member at a university, or an individual student. The university is the home and sponsor of critics. It is not itself the critic. It is, to go back to that classic phrase, a community of scholars to perform its mission in the society.
And I'm quoting here from the report, “A university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its community. It is a community, but only for the limited, albeit great, purpose of teaching and research. It is not a club. It is not a trade association. It is not a lobby.”
The idea behind this, and it’s a two-page statement effectively, is, except in extraordinary circumstances, the university should not play social critic, so as that it doesn’t appear or have the effect of putting its thumb on the scale of different ideologies that might be in contention within the marketplace of ideas that is a college or university. It seems like what – and this is not a wholly adopted position by every college or university in the country, I think, as events over the past couple of years have made clear.
But it is something that the University of Chicago tries to hold to, and I think has some merit to it, right, to the extent that if you say this from the outside, people aren't expecting you to give your opinion, and you avoid situations like this, where Dean Steinbach very much editorialized on the content of Judge Kyle Duncan’s speech, sympathized with the hecklers, condemned the judge, and again, asked, “Is the juice worth the squeeze?” So, I was wondering if you could kinda give your thoughts on that, as colleges and universities are increasingly being asked to opine on social or political issues and are increasingly doing so, at least it seems to me.
David Lat: So, I think that what Dean Steinbach was doing is a familiar move that we have seen in a number of other circumstances, where they will say, “Well, X is protected speech, but we really don’t like X.” So, for example, when there was the so-called Trap House dispute at Yale Law School over one law student’s use of that phrase in a party invitation, the law students themselves were very divided on the meaning of the term and whether it was offensive. But an administrator sent around an email basically siding with one group of students.
And as you were saying, I think in these battles between student groups or battles between students and faculty, or faculty members, the university is supposed to be an honest broker. The university is supposed to be neutral. And if the university is taking one side or another, I think it is violating its rule, its role as a home for different ideas. So, even though I think this is the ideal role for the university, to really be a home for different ideas, Dean Steinbach is part of this trend of universities stepping outside of that.
So, again, going back to Yale Law School, which until this recent event, was sort of the poster child for these speech disruptions, Yale Law School dean of students’ office was giving out T-shirts in support of critical race theory. Now, critical race theory is extremely, extremely divisive. And so, for the law school could be taking sides in the cultural wars by giving out these T-shirts is really, I think, just a violation of its role. Just imagine if the shoe was on the other foot, and they started giving out T-shirts that say, “Celebrated the overruling of Roe v. Wade and Dobbs.” I don't think anyone would be okay with that. And yet – yeah –
Nico Perrino: Or Blue Lives Matter T-shirt –
David Lat: Exactly, or a Blue Lives Matter –
Nico Perrino: – or something.
David Lat: – instead of Black Lives Matter. I think a number of law schools have probably issued statements in support of Black Lives Matter, but no law school would ever think of doing so for something like Blue Lives Matter. And again, I don't think a law school should issue a statement in support of Blue Lives Matter. It shouldn’t be issuing all these statements left and right, but a lot of law schools are doing this anyway.
Nico Perrino: And you could see how students then get the idea, “Okay. You're saying these are our values, right, and you're condemning folks on the other side. Why would we let speakers on campus who reject or conflict with the university values.” You could see how that – it could create that sort of culture on this.
David Lat: Exactly. Exactly. But look, I will say a word in kind of defense of the administrators, in the sense that, look, this is 2023. We can all sense where the winds are blowing. There are enormous forces on the side of certain issues, when it comes to social justice, and administrators are incredible pressure, especially since the student bodies and the faculties are very much on one side of these issues. Stanford Law School has basically one conservative faculty member, Professor Michael McConnell, who’s the faculty advisor for Stanford Fed Soc.
So, can you really expect an administrator to try to be neutral and balanced when the students and the faculty lean so heavily one way? I think that’s the ideal that administrators should aspire to, but I am aware of the way human nature is. I can understand why they feel they can give themselves a little political cover by saying that they don’t like this speech, even while saying it’s allowed under the policy.
Nico Perrino: Yeah. I recently looked at data that showed the diversity, the political diversity of faculty on college campuses, and it was like one conservative to every two and a half liberals, kind of in the middle part of the century. And now you’ve got something like – in some northeastern, New England schools, something like – and in some departments, something like one conservative for every 25-45 liberals. I don't know what the exact number is, but it’s been an exponential kind of divergence between the number of conservative libertarian faculty and liberal progressive faculty.
So, can you talk to be a little bit about how the Federalist Society then is situated on many of these college and university campuses? Because we talked about Stanford, right? The Fed Soc’s group was the one who invited Judge Kyle Duncan to campus, but you also mentioned Yale, and I think that was a Federalist Society-hosted event. And then you had the other shout down at Hastings, or formerly known as Hastings College of Law, with Ilya Shapiro, and I believe that was also a –
David Lat: Yes.
Nico Perrino: – Fed Soc-hosted event. So, how does Federalist Societies fit into the law school’s ecosystem in this day and age?
David Lat: So, I think the reason why Fed Soc is often the organization as at the center of these is it is the carrier of the flag for ideological diversity because as I mentioned, the Federalist Societies and organization of conservative and libertarian lawyers and law students, and right now, the vast, vast majority of American law schools, they are the minority. And so, that’s why the Federalist Society is the flashpoint. The other thing I would point out is, look, as a lot of people who are fond of coming up with conspiracy theories about Fed Soc say, it is true that the organization has a lot of money.
And so, the Federalist Society chapter sponsors, at a typical law school, many more events than, say, the American Constitution Society or the National Lawyers Guild. So, if you have this combination of 1.) an organization that has a lot of money and the ability to bring a lot of speakers to campus, and 2.) the fact that that organization swims against the tide, ideologically, of course you're gonna have all of these free speech conflagrations. So, that’s kind of where Fed Soc fits in right now. You had about 12-20 people at the Duncan event who were there to listen to Judge Duncan, and you had around 100 who were there to protest him, and that seems about right, to me, at many law schools.
Nico Perrino: And Stanford isn't a huge law school –
David Lat: No.
Nico Perrino: – if I understand correctly. There’s something – I feel like I read it somewhere, 160 students –
David Lat: Yeah, 160-180 –
Nico Perrino: – in the 1L class.
David Lat: – maybe around 600 in the whole school. It’s a small place.
Nico Perrino: Yeah, and in talking about the fallout of the event, let’s pivot now to Dean Jenny Martinez’s class that happened the next week, right? Jenny Martinez had issued a statement on her own, and then a cosigned apology to Judge Duncan over that weekend, and then was set to teach a class. I believe it was on the following Monday or Tuesday, and arrived in class to her whiteboards, and desks, and computers plastered with different signs. One sign read, “Counter speech is free speech.”
Another sign read, “We the students in your constitutional law class are sorry for exercising our first amendment rights,” not quite understanding that the first amendment doesn’t apply at Stanford, outside of the Leonard Law, which is a whole ‘nother web. And then also, posting an article from The New York Times, I believe, about Nicholas Wallace’s situation at Stanford Law School. For those who aren't familiar with this story, Nicholas Wallace was set to graduate from Stanford Law School I believe in 2021.
He had issued or distributed a satirical email invitation from the Federalist Society, in one of the Federalist Society member’s name, in which he said – I'm trying to find the specific facts here. He invited students to attend a fictional Federalist Society event to be held 19 days earlier, so there’s no way the event could have been held because he sent the email after the event was set to occur. And at this event, he said that a couple of politicians, including Josh Holly, both members of the Federalist Society would be the keynote speakers at the event, and the event would be called The Originalist Case for Inciting Insurrection, referring back to January 6.
And his degree was held up. He didn’t know if he would be able to graduate. Once this was made public, in part by FIRE, the university quickly backed down and took the hold off of his degree, but I believe they printed out one of the stories about this and posted this up in Jenny Martinez’s class because I believe Jenny Martinez was still the dean at that time.
And then it was either before Dean Martinez or after Dean Martinez’s class, there was a silent protest held outside of the classroom where students were wearing masks and essentially trying to kind of shame the dean. And I believe the purpose of this was to not punish Dean Steinbach as well as to kind of reject the apology that was issued by Dean Martinez and the university president altogether.
David Lat: Yes.
Nico Perrino: Am I getting those facts –
David Lat: That’s correct.
Nico Perrino: – correct?
David Lat: And she had to walk past this phalanx of students who were protesting her for essentially her apology. There’s some disputes over how many students. Some people say it was over 100. My sources say it was under 100. But look, at a small law school, it was a sizable group of people. It was definitely north of 50. And they were very angry. But interestingly enough, they were silent. So, if these protesters had done the same thing to Judge Duncan, we wouldn’t be here talking about this.
Silent protest, where you just glare at somebody and maybe hold up a sign that doesn’t block anyone’s view is totally fine, and that’s totally consistent with Stanford’s policy. So, if they had given Judge Duncan the treatment they gave Dean Martinez, everything would have been fine.
Nico Perrino: What did you make of some of the flyers that were put up ahead of Judge Duncan’s appearance? One of them said – I believe you had briefly alluded to it before – “Fed Soc, you should be ashamed. Kyle Duncan has fought” –
David Lat: Yes.
Nico Perrino: – you know, lists a bunch of things that he's done to overturn reproductive healthcare or same-sex marriage, things like that. And then there was a separate flyer, which had more or less the same message, but also featured the pictures and titles of Fed Soc members.
David Lat: So, as I said in my first writeup of this story, I don’t love signs like this. I think that we should have more of a culture of calling in rather than calling out, to mention the work of Professor Teresa Ross. I think if you disagree with some, and instead of trying to attach them personally, you should try to explain to them your point of view. I would prefer that. That said, there is nothing prohibited about calling out members of a group that invites a speaker you don’t like to campus, and a poster like that is a form of counter speech, to basically say, “Look, these are the people who are inviting this terrible speaker to our campus.”
And so, sometimes, I participate in events with Federalist Society chapters. They believe in having ideological diverse speakers, and so, they have people all over the ideological spectrum to participate in their events. And sometimes, I talk to the students before or after the events, and I do tell them, “Look, if you can dish it, you can take it. If you're going to invite these controversial speakers to campus, you can't then suddenly run crying to the administration for help when you get criticized for inviting those speakers.”
As you mentioned, regarding the situation with Nicholas Wallace, if you are going to do things that are controversial, don’t be surprised when people do things back. That’s a legitimate form of counter speech. Now look, harassment would be a different thing. If you were calling these people up repeatedly in the middle of the night, if you're issuing threats to the members of the Federalist Society, concrete threats of imminent physical violence, that’s one thing. But just putting up their faces and saying, “These are the people who invited this terrible speaker,” again, not what I would do, but permitted under the university policy, as far as I can tell.
Nico Perrino: How do we put this event in context now? I imagine this probably won’t be the last time something like this happens at a law school. It might not even be the last time it happens at Stanford, although I bet Stanford will be more vigilant about policing disruptive behavior within university-approved events in the future, much like Yale, actually, has been since that event.
But I’ve also heard, behind the scenes, that whereas it used to be historically true that Fed Soc and ACS, the American Constitution Society, used to cosponsor events, that’s just not happening anymore, and law schools, much like the rest of American society, have become increasingly polarized, and the sort of debates aren't happened in the same way, in a cross-partisan or cross-ideological manner that they used to.
David Lat: Yes.
Nico Perrino: Is that right?
David Lat: The same argument that’s used against Judge Duncan is used against speakers who want to participate in events with the Federalist Society, even if they're taking the liberal or progressive side. You are legitimating this organization. You are giving this organization or this speaker a lap forum. And so, that’s why you don’t see these co-sponsorships as much as you used to because many chapters of ACS don’t want to do anything, have anything to do with the Federalist Society, which they regard increasingly as an illegitimate organization.
In the terms of Stanford, I would point out that both the National Lawyers Guild and the American Constitution Society chapters at Stanford issued emails after the event, basically defending what took place. So, don’t be shocked if there’s another such protest because at least two organizations have weighed in to say, just like Dean Steinbach, “We’re not asking what’s going on here; we’re happy about what’s going on here.”
Nico Perrino: Yeah. Honestly, I don’t even know what to make of it because I feel like when I've been having debates with people about this on Twitter and, believe it or not, in real life – that still happens – there’s just like a completely different reading of the event than the one that we had read here at FIRE and sounds like you had read. This, to them, is counter speech in its purest essence. I just don’t see it that way, and we have never seen it that way.
I mean, long before this was happening at Stanford, we had issued kind of the same sort of statement about what constitutes substantially disruptive activity at Yale, at Hastings, and a myriad of other context on college campuses where fleeting remarks, intermittent, signs held in the back of the room, okay, but making it so that a speaker can only get a sentence out or a sentence or two out before being heckled, I mean, it’s just been our position for a long time.
And as you say, I mean, if the shoe were on the other foot, if Judge Elena Kagan or liberal-leaning judge from one of the appellate courts were to speak on campus and the Federalist Society were to do this to progressive or left-leaning student groups, I don't think they would be singing the same tune. And if they were, how do you even have a university in that environment, where it’s just might makes right and the loudest person in the room gets to speak, and if you’re the invited speaker, you just have to have a bullhorn or have the loudest voice?
It just doesn’t make sense to me, nor is it something that, as aspiring lawyers, you really wanna practice, right? I mean, lawyers are supposed to go out into the real world and make arguments and convince people who disagree with them. So, you’ve done some writing about the legal profession and ideological diversity in the legal profession. I remember reading a Wall Street Journal article last year, after the Dobbs decision that overturned Roe v. Wade, and was it Hogan Lovells –
David Lat: Yes.
Nico Perrino: – where there was an equity partner [inaudible -- crosstalk] [00:49:52] –
David Lat: Yes, a retired equity partner.
Nico Perrino: – that still had some clients. Retired equity partner was invited to a discussion group with women at the firm, in light of the Dobbs decision. And it sounds like the retired equity partner was either prolife or at least wanted to play devil’s advocate and make some of the arguments that prolife staffers might make, and was effectively brought before HR and asked to retire and turn over her client list for merely asking or positing that point of view. So, in that case, this talkback or this discussion wasn’t a discussion; it was more – it sounds like more like a therapy session.
David Lat: Well, I think –
Nico Perrino: And I can only imagine the self-censorship, if you're a conservative or a libertarian at one of these big law firms.
David Lat: So, one of the arguments I got in response to the Robin Keller affair at Hogan Lovells was, “Well, she should have understood this kind of was a therapy session,” because I think it was billed as something about a discussion for women lawyers to discuss the aftermath or something like that, some word of Dobbs. And the other thing I will say, just to be fair to the other side, she did pose her opposition to Roe and her support of Dobbs in admittedly incendiary ways.
She talked about how various black intellectuals have said that abortion disproportionately affects the black community, and therefore, a form of, I think she said racial genocide. So, it wasn’t just saying, “I support Dobbs.” She did other things. And so, a lot of people who attacked the Robin Kellers of the world say, “Well, it wasn’t merely just for supporting Dobbs. It was for how she did it.” So, fine.
Nico Perrino: But that line of critique or argumentation that certain things disproportionately affect minority and marginalized communities, isn't that something that’s done a lot now though? But you can't ask this question –
David Lat: Not after certain policies.
Nico Perrino: And that – yeah. I guess it’s to certain policies.
David Lat: Yeah.
Nico Perrino: I don't know. I just hear that line of reasoning –
David Lat: Oh, absolutely.
Nico Perrino: – quite a bit now.
David Lat: Absolutely. But there’s a certain set of positions that are yoked together, and she violated one of those positions. And so, I can't say I was shocked by what happened to her, given what we know about law firms in 2023.
Nico Perrino: Yeah. I guess it might not be. Yeah. I mean, well, what do we know about law firms in 2023? I'm not – I'm in a public interest [inaudible -- crosstalk] [00:52:20], I guess you might say, but I'm not in a big corporate –
David Lat: No. I wrote a piece about –
Nico Perrino: – law firm.
David Lat: – this for the Boston Globe, an op-ed where I talked about Robin Keller. I talked about Paul Clement and Erin Murphy being asked to leave Kirkland and Ellis after they won Bruin, the big second amendment case. When it comes to socially conservative positions – and look, big law firms are economically conservative. They represent large companies. So, that’s fine. We get that. But on socially conservative issues, those perspectives are not really welcomed at the vast, vast majority of large US law firms. Just as there is on faculty, as we discussed, there’s an ideological imbalance at large law firms as well. And I don’t think that’s good for the firms, and I don't think it’s good for the profession.
Nico Perrino: Yeah. Well, you do have firms that are viewed, at least, a little bit as more conservative, like Jones Day.
David Lat: And I always challenge people –
Nico Perrino: But I believe I read something –
David Lat: – “Tell me the other Jones Day.” People always trod out Jones Day, but I follow the world of large law firms obsessively. This is really the main topic I was writing up about, before all these free speech controversies came along, and I would be hard-pressed to name another law firm in the Am Law 100, the 100 largest law firms in the US by revenue, that is really at the level of a Jones Day. And even Jones Day is not that conservative. Professor Derek Muller, a law professor, did an analysis of campaign contributions, which is the main way we obtain information about the political leanings of law firm employees.
It’s what Maya Sen and her colleagues did in that 2015 paper about ideological diversity or the lack thereof on faculties. And Derek Muller found that even at Jones Day, 75% of campaign contributions go to democratic candidates. So, it’s not like Jones Day, writ large, not the high profile handful of people like Don McGahn, former White House counsel, and Noel Francisco, former solicitor general, but the rank and file folks at Jones Day, 75% of their campaign dollars are going to democrats.
So, again, it’s not like Jones Day is some kind of hotbed of conservativism, if you look at the entire institution. And again, what’s the other Jones Day? I'm hard-pressed to come up with other firms. I guess if you stretch it to the 200 largest firms, maybe you can throw in Kasowitz, maybe also perhaps Barnes and Thornburg, but what, three firms out of 200, and that’s kind of stretching it.
Nico Perrino: Yeah. And I think I read somewhere that if you were to map Jones Day’s ideology to a politician –
David Lat: Exactly.
Nico Perrino: – it’d be Joe Manchin, right?
David Lat: That’s what –
Nico Perrino: – who is himself –
David Lat: That’s what Sen, and Bonica, and Chilton found. Joe Manchin, that’s your reactionary right-wing law firm.
Nico Perrino: Yeah. I mean, but what’s the cost of this, right? It’s that you have a conservative majority Supreme Court, and folks who aren't as versed – and you don’t need to be versed in – you don’t need to be conservative to make a conservative argument to a conservative justice, but it sure helps to have those sort of people within your firm –
David Lat: Yes.
Nico Perrino: – perhaps, people who can provide sort of ideological disconfirmation, who can effectively moot your case. And it seems like not just within law firms, but even now within law schools, seeing what’s happened, that there’s just less and less of that, which has the effect of making these lawyers and aspiring lawyers less effective advocates, I would assume.
David Lat: Yes, that’s just common sense, I think. Now look, are there lawyers who are liberal or progressive, who are great at understanding originalist and textualist arguments? Sure. A good example is Neil Katyal, who argued Moore v. Harper, the independent state legislature theory before the Supreme Court. But as I said on Advisory Opinions, not every lawyer is a Neil Katyal, and for the average or more average lawyer, I think it’s only inevitable that habits you learn in law school are going to bleed into your life after law school.
Nico Perrino: Well, David, I think we’ll leave it there. I really appreciate you coming on the show. Are there any last thoughts that you wanna share with the audience about Stanford, or Yale, or Hastings, or just this kind of situation for free speech in law schools more generally?
David Lat: No. I don’t really have anything to add. I think we've covered it pretty thoroughly. I guess I would just say that I'm a little bit disheartened by the way things are. I thought that because Yale had calmed down, maybe all of academia had calmed down, or all of legal academia, but as we see from March 9 at Stanford, that is definitely not the case.
Nico Perrino: Oh, yeah. Just when I think things calm down on campus, they tend to heat up again and come out of nowhere.
David Lat: Exactly.
Nico Perrino: It happens to be like right on a Friday or a Thursday, or a late –
David Lat: I was on a cruise ship when –
Nico Perrino: – on a Thursday –
David Lat: – Stanford broke.
Nico Perrino: – on the West –
David Lat: Exactly.
Nico Perrino: I know. And this is your –
David Lat: Yeah, exactly.
Nico Perrino: – beat, right?
David Lat: So, of course, I have to –
Nico Perrino: So, you kind of have to do the story. Yeah. Or it happens on the weekend. One time, when the Milo Yiannopoulos was supposed to go to Berkeley, and there were FIRE bombs or Molotov cocktails, that was on my birthday.
David Lat: Happy birthday.
Nico Perrino: Yeah. So, that was happy birthday, right? Well, David, I thank you again for coming on the show.
David Lat: Great. Thanks so much for having me, Nico. It was a pleasure.
Nico Perrino: That was David Lat, with Original Jurisdiction. This episode was hosted and produced by me, Nico Perrino, and edited by my colleagues Ella Ross and Aaron Reese. You can learn more about So to Speak by subscribing to our YouTube channel, which is linked in the show notes. You can also follow us on Twitter by searching for the handles @FreeSpeechTalk. We’re on Facebook at facebook.com/sotospeakpodcast, and we take email feedback at sotospeak@theFIRE.org.
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