Judge Duncan: Stanford Incident a "Parody" of Free Speech Tradition

Earlier this month, Fifth Circuit Judge Kyle Duncan was shouted down by members of the Stanford Law community while delivering remarks to the school's Federalist Society Chapter. The incident sparked disgust by members of legal community on both the right and left who value respect for the bench and our First Amendment rights. 

As David Lat put it: "[I]t’s a pretty sad commentary on the state of free speech in American law schools if the ability to get out a few words is the standard for acceptable events."

Judge Duncan himself gave especially poignant remarks on his experience at Stanford while addressing a joint event by the University of Notre Dame’s Center for Citizenship and Constitutional Government and the Federalist Society. An adaptation of these remarks has been published by National Review.

On the First Amendment, Judge Duncan artfully explained how the Stanford incident was a "parody" of the American tradition of free speech:

What went on in that classroom on March 9 had nothing to do with our proud American tradition of free speech. It was a parody of it. I’m relieved that Dean Martínez’s letter forcefully recognizes this. As she writes: “Freedom of speech does not protect a right to shout down others so they cannot be heard.” It is not free speech to silence others because you hate them. It is not free speech to jeer and heckle a speaker who’s been invited to your school so that he can’t deliver a talk. It is not free speech to form a mob and hurl vile taunts and threats that aren’t worthy of being written on the wall of a public toilet. It’s not free speech to pretend to be “harmed” by words or ideas you disagree with, and then to use that feigned “harm” as a license to deny a speaker the most rudimentary forms of civility.

Some of the students were apparently convinced that what they were doing was “counter-speech.” Wrong. Counter-speech means offering a reasoned response to an argument. It doesn’t mean screaming, “Shut up, you scum, we hate you” at a distance of twelve feet. Other students claimed this was nothing more than the “marketplace of ideas” in action. Again, wrong. The marketplace of ideas describes a free and fair competition among opposing arguments with the most compelling one, we hope, emerging on top. What transpired at Stanford was no marketplace. It was more like a flash mob on a shoplifting spree.

Judge Duncan continued:

Let’s say the quiet part out loud: The mob came to target me because they hate my work and my ideas. They hate the clients I represented in court. They hate the arguments I made. They evidently hate my judicial opinions, although the protesters were evidently familiar with only one of the hundreds I’ve written — an opinion where I refused to enlist the federal judiciary in the project of controlling what pronouns people use. So, the protesters did not come to respond to my talk or engage in counter-speech. They just wanted to vent their rage against me. None of this spectacle — this obviously staged public shaming — had the slightest thing to do with “free speech.” It had everything to do with intimidation. And to be clear, not intimidating me, but the protesters’ fellow students. The message could not have been clearer: Woe to you if you represent the kind of clients that Judge Duncan represented, or take the same views that he has.

Judge Duncan also discussed how the Stanford incident was such a departure from the culture that law schools historically attempted to foster, "[having] to occupy the same room with people you seriously disagree with — and yet to have to engage in reasoned, indeed persuasive, argument with them."

David Lat will join us this Friday at 2:00 p.m. ET to discuss the incident at Stanford during a special webinar on academic freedom. The Heritage Foundation's Jonathan Butcher will also join us to give an update on recent school choice victories across the country.

Register here for Friday's webinar!