Why the heckler’s veto is wrong, and why universities must stop it
Something disturbing is taking place with increasing regularity at elite law schools. For the third time this year, a guest speaker has been rudely confronted by a mob of tendentious scolds intent on suppressing views with which they disagree.
Not content to merely express their opposing point of view, these campus brownshirts are so sure of their beliefs, so positive that their perception is the valid one, the only true one, that they seek to quash the speech of their ideological opponents.
And they are able to do this because feckless administrators have tolerated their outrageous behavior—the use of what is known as the “heckler’s veto”—for far too long. Now, they are reaping the whirlwind.
The heckler’s veto is an unethical tactic used to advance one’s own beliefs by silencing one’s opponent instead of offering a compelling argument of one’s own. Someone with alternate views has his speech canceled or, if it is held, shouted down, disrupted, and mocked.
This is precisely what took place at Stanford Law School on March 9, when Fifth Circuit Court of Appeals Judge Stuart Kyle Duncan was scheduled to deliver a lecture on “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.” Instead of being greeted by a polite group of students eager to learn from a federal judge’s wide experience, Judge Duncan—who had been invited by Stanford’s chapter of the Federalist Society (FedSoc)—faced some 100 jeering activists whose only goal was to prevent him from speaking at all.
As Duncan began his prepared remarks, boos and jeers filled the room, as the less-than-eloquent brats screamed such clever taunts as, “You couldn’t get into Stanford!” “You’re not welcome here, we hate you!” “Why do you hate black people?!” “Leave and never come back!” “We hate FedSoc students, f**k them, they don’t belong here either!” and “We do not respect you and you have no right to speak here! This is our jurisdiction!”
Even more astounding than the law students’ insolence was the passive-aggressive behavior of Stanford’s associate dean for diversity, equity, and inclusion, Tirien Steinbach, who helped disrupt the judge’s lecture by reading a written speech of her own that she had obviously prepared. But her message was not meant to mollify the woke disruptors—it was meant to rudely chastise Judge Duncan and defend the students that diversocrats like her groom into full-blown grievance-mongers.
Catering to that small group of woke law students, Steinbach stepped up to the podium and castigated Duncan. As she put it, “ . . . I’m uncomfortable and it’s uncomfortable to say this to you as a person. It’s uncomfortable to say that for many people here, your work has caused harm. Has caused harm.”
“We believe that the way to address speech that feels abhorrent, that feels harmful, that literally denies the humanity of people,” she continued, “that one way to do that is with more speech and not less.” Steinbach is correct that more speech—i.e., diversity of thought on topics of importance—is a good thing and should be exactly what universities promote.
[Related: “More Hope From Stanford”]
But jeers and boos are not “more speech.” While Steinbach correctly noted that Stanford upholds the precepts of academic freedom and free speech, she completely contradicted herself when, in the same breath, she implored Duncan not to speak at all because of the alleged damage it might do to these sensitive law students.
“Is the juice worth the squeeze?” she cryptically asked a confused Duncan. “I mean is it worth the pain that this causes and the division that this causes?” she continued.
Do you have something so incredibly important to say about Twitter and guns and COVID that 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’s caused [emphasis added].
Only in the rarefied universe of coddled, intellectually lazy law students would these entitled scolds see themselves in a battle, especially when they cannot abide the mere presence of someone with whom they disagree, let alone challenge his ideas thoughtfully and civilly.
The censorial Stanford Law brownshirts, along with complicit DEI administrators and their fellow travelers on other campuses, have created their own definitions of free speech. They limit it in ways that are contrary to what universities say it is and should be, and they classify certain speech—that with which they disagree—as harmful, cruel, and even “violent.”
Last March, Yale Law School students disrupted an event sponsored by the Yale Federalist Society, pounding vigorously on the tables and screaming jeers and slurs at the guests. The event featured Kristen Waggoner, lead counsel for the conservative Alliance Defending Freedom (ADF), and Monica Miller of the progressive American Humanist Association, who planned to discuss (ironically) free speech issues.
Yale’s LGBTQ students had already mobilized their opposition to Waggoner’s appearance, particularly because ADF, according to a flyer they distributed, “is an organization designated by the SPLC [Southern Poverty Law Center] as a hate group.” Apparently, the Federalist Society’s invitation to Waggoner provided “a veneer of respectability [that] is part of what allows this group to do work that attacks the very lives of LGBTQ people in the US and globally.” Once it had been predetermined that ADF was anti-gay, it no longer mattered what Waggoner said at the event. The moral scolds at Yale Law School had already decided she should be forbidden from giving her opinions about anything at all.
Also last March, activist students at the University of California College of the Law, San Francisco (formerly known as the UC Hastings College of the Law) shut down the appearance of conservative legal scholar Ilya Shapiro at a FedSoc event. Shapiro—incoming executive director of Georgetown’s Center for the Constitution, it will be remembered—experienced the collective wrath of his own school when he tweeted comments criticizing Joe Biden’s pledge to nominate a black woman as the new Supreme Court justice.
So, in March, when Shapiro arrived to speak with liberal Hastings professor Rory Little at an event titled “The Breyer Vacancy: The Rise of Contentious All or Nothing Battles for Supreme Court Nominations,” students associated with Hastings’ Black Law Student Association had already planned to use the “heckler’s veto” to silence Shapiro for his ideological transgressions.
[Related: “Amy Wax in the Crosshairs”]
During the entire 53-minute event, student demonstrators in the classroom—some holding placards reading “I Am Not Lesser,” “Support Black Women,” and “Black Women Matter”— blocked the podium while Shapiro tried to speak and screamed “Black lawyers matter” while pounding the desks and drowning out any other speech. When Hastings’ dean of academics, Morris Ratner, pleaded with the students to let Shapiro speak and reminded them that they were violating the school’s code of conduct, one unconvinced student screamed, “Remove him off the f*cking campus, because that’s what we want.”
Universities support vigorous responses by students and faculty to speech with which they disagree, including courteous protests outside the venue, the use of placards, sitting in silence at the event with armbands, and issuing flyers encouraging attendees to avoid the event or read alternative information. But vocal disruptions—shouting, pounding on desks, jeering, using noisemakers, or otherwise interfering with a speaking event in a way that prevents attendees from hearing it—are specifically prohibited.
The Hastings, Yale, and Stanford law student demonstrators revealed a breathtaking display of audacity. They are woke, identity-obsessed students who have taken it upon themselves to decide which ideas can be heard and which can, and should, be suppressed—all in the name of protecting the sensibilities of alleged victim groups on campus. That is a dangerous notion, one which contradicts the purported goal of universities: the unfettered exchange of differing views in the “marketplace of ideas.”
Unfortunately, many on the Left believe that their progressive views are virtuous and moral, and that conservative views are regressive, cruel, and unjust. The rectitude of these students and administrators is not only ill-conceived but also startling and offensive.
They assume, falsely, that some ideas are intrinsically superior to others and that only those deserve to be expressed; that these few law students have the knowledge and insight—about all areas of inquiry—to assess the value of a speaker’s intellectual contributions; and that students should be able to vet and even “cancel” speakers chosen to visit campus—especially speakers who may be controversial, unorthodox, incendiary, or representative of different perspectives.
Most importantly, as future lawyers, they will not be able to pound on a table and suppress the speech of others in the courtroom, including opposing counsel and the judge. They will not be able to present their side of a case without the other side presenting theirs. The university is a place where the same decorum for promoting views, developing arguments, supporting one’s opinions, and inspiring academic inquiry are fundamental to the advancement of learning.
That is precisely why universities exist and why any attempts to suppress certain speech are antithetical to what the university represents. It is why, either in a law school classroom or in a courtroom, unfettered free speech is paramount—even, as Justice Oliver Wendell Holmes, Jr. put it, “for the thought that we hate.”
Image: Adobe Stock
6 thoughts on “Future Lawyers Who Are Afraid to Debate”
Back in 2020, on Minding The Campus, you were taken to task by Daphne Patai: “Cravatts writes that the Princeton proposal–a truly appalling attack on everything a university ought to represent– “assumes, falsely, that some ideas are intrinsically superior to others and that only those deserve to be expressed; …” Daphne wrote, ” …one should be able to defend people’s right to express their ideas, however foolish, without having to endorse those ideas, and without falling into such relativism that it becomes impossible to distinguish between truth and lies. Defending freedom of speech does not mean respecting the content of the speech in question, which is an entirely separate matter.”
Why trot out the identical ridiculous claim in this article: “They assume, falsely, that some ideas are intrinsically superior to others and that only those deserve to be expressed…”? It was wrong then, and it is wrong now, for all the reasons Daphne Patai set out.
The Future Lawyers of America are revolting! Or, at least, a significant number, particularly those at elite schools, are so badly constituted and so scornful of the norms of a civilised society that they are a stain on the profession! They are, to borrow a phrase, unworthy!
Of course, there is no novelty in that. The profession is chock full o’ persons motivated by things other than a burning concern for Justice and the general welfare, a large number of whom – in my experience – enter as unmitigated egotists. If they acquire mature values through exposure to the vicissitudes and frequent awfulness of life it is practically a miracle.
And yet things chug along.
Professional standards are challenged from within and without; incompetence, bad behaviour, and outright law-breaking are not exactly uncommon; at the highest levels political and religious ideology has soaked right into the matters with which lawyers wrestle on a daily basis – a process given new impetus by the unstinting efforts of President Trump.
Somehow the massive and complex enterprise copes, and two things are necessary (though not sufficient) for its continued survival. The first is a strong commitment to an ethical code that underpins a harmonious pattern of personal behaviour in a highly adversarial setting; the second is an absolute commitment to collective reasoning – whereby disputes and conflicting accounts are resolved through decisions justified as correct in the light of the evidence and the law.
Judge James Ho believes that “The real problem in the academy is not disruption – but discrimination. Rampant, blatant discrimination against disfavored viewpoints”… most particularly, “discrimination against religious conservatives”. The Judge is in touch with the Zeitgeist in claiming special victim status for a favoured group, but the ‘intellectual terrorists’ of whom he speaks loathe and detest any and all viewpoints which do not accord – or are not immediately re-shaped to accord – with ‘their Truth’. Science and Medicine are among the major casualties. My screensaver is the Scientific American graphic ‘Beyond XX and XY’, an inspired attempt to depict biological sex as a spectrum, and to denounce the very idea of sex as a binary attribute as the product of social conditioning.
Rightly appalled by the rise of vicious Judge-baiting by students of law, Judge Ho has his own ideas about how campus disruption can be remedied. He and Judge Elizabeth Branch have certainly incentivised the “grown-ups”, as he puts it, to discipline, rather than pander to, the recalcitrant children of Stanford and Yale. Judge Ho recently declared, “Here’s the good news. This problem should be easy to solve” – but what exactly is the remedy for a closed mind?
What is the corrective for highly educated zealots who have no interest in reasoning or reflection or due process, and who not only despise the formal and informal norms that guarantee these quaint practices, but everything that gave rise to them?
Discipline and punishment can only go so far.
As we reason and debate these sneering and implacable opponents of reason and debate are already in the workplace.
It is also important to take note that many Judges (who WILL know the names of these former students–now lawyers) and will not allow them in their courtroom. I imagine that Federal Court Judges, regardless of political affiliation, stick together and will refuse anyone who has disrespected one of their colleagues to practice law in their courtrooms, certainly restricting these troublemakers’ careers.
Only one problem: who are the miscreants?
SLS is bending over backwards NOT to identify them, including by “encouraging” (read: threatening) other SLS students not to cooperate with outsider efforts to match names with faces / voices on the videos. So we’ve now gone from “not punishing” them to actively *protecting* them from any extra-academic consequences for their acts. Ask yourself what kind of message that sends, and what kind of behavior will result.
What I suspect you will see from savvy potential employers, is to simply assume who matriculated at SLS in the Spring of 2023 is suspect until proven otherwise (e.g., FedSoc members whose faces were put on posters by the NGL red guard wannabees are safe but everyone else will be assumed to have been part of the mess).
Plus, Judge Ho has now extended his hiring boycott to Stanford (and I know of other federal judges who may not publicly endorse the boycott but will follow suit). Note that after Judge Ho announced the Yale Law School boycott, the Yale administration has pretty much grovelled for him to lift the boycott; he’s playing a cool hand to see if their contrition is serious and backed with action or is just window dressing. (Very shrewd play, Judge Ho!)
I don’t think SLS will do this, however. Martinez owns this whole mess, as she’s the architect of the SLS DEI edifice. (Who created the SLS DEI deanship and hired Steinbach to fill it?) She’s sowed SLS’s fields with DEI seeds, fertilized them with gobs of money, and hired Steinbach to tend them. Now that she’s reaping the foreseeable bitter harvest, she is claiming to have had a realization. Like Judge Ho I’m not buying it — this was the crop she meant to raise. (See her public statements at the height of the George Floyd hoopla, and the tell me how this wasn’t exactly what she had in mind.)
I actually take a somewhat different view. Let the children protest and heckle and disrupt speeches. What goes around comes around. Call it karma. These kids will eventually graduate and try to get federal court clerk positions or jobs at big law firms. The former isn’t going to happen. Already some federal judges have gone on record saying they will not accept applications from Yale law school graduates. The big law firms will quickly find out these puerile, woke law school graduates cannot perform in a courtroom. They have no ability to debate or form counter-arguments. Bye bye partnership.
Ultimately these kids will find out their dreams of a lucrative law career are just that—wistful dreams and nothing more. And it couldn’t happen to a more deserving group of people.
I agree with your sentiments but allowing such behavior to continue will only encourage more of it. Sure, they may eventually learn that their methods don’t work in the real world, but maybe not. We see the same childish methods tolerated more and more in the real world. It needs to be stopped. Now. Today, while these students have an opportunity to learn to correct and change their destructive methods.