Stanford Law School dean Jenny Martinez has released a 10-page letter responding to complaints about her prior apology to Judge Duncan and explaining what she has decided to do about the disruption of his speech.
You may recall that a few days after the incident, a large group of students held a silent protest in dean Martinez’ constitutional law class to signal their displeasure with her decision to apologize to Judge Duncan. The classroom was papered with posters stating things like “counter speech is free speech.” Then when Martinez left the room she found the hallway leading to the exit was lined with students dressed in black:
When Martinez’s class adjourned on Monday, the protesters, dressed in black and wearing face masks that read “counter-speech is free speech,” stared silently at Martinez as she exited her first-year constitutional law class at 11:00 a.m., according to five students who witnessed the episode. The student protesters, who formed a human corridor from Martinez’s classroom to the building’s exit, comprised nearly a third of the law school, the students told the Washington Free Beacon.
Shockingly, these future attorneys at one of America’s top schools were utterly wrong about free speech. In her letter today, dean Martinez explained why at length.
Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protestors a “heckler’s veto.” As First Amendment scholar Dean Erwin Chemerinsky has written, “Freedom of speech does not protect a right to shout down others so they cannot be heard.”…
To the contrary, settled First Amendment law allows many governmental restrictions on heckling to preserve the countervailing interest in free speech. As the California Supreme Court stated in In re Kay, 464 P.2d 142, 149 (Cal. 1970), “the state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizens’ rights of free association and discussion.”…
The “nature of a meeting” in an indoor university classroom, under settled First Amendment law, does not countenance the same sort of “prolonged, raucous, boisterous demonstrations” that might be acceptable at an outdoor rally, see In re Kay, 464 P.2d at 150. Rather, different “customs and usages” apply in a setting like a planned lecture in a reserved room on campus. In such a setting, limiting audience participation to signs, questions during a planned Q&A, and a non-disruptive level of audience reaction is appropriate to the nature of the forum. Stanford’s event disruption policy gives attendees a right to hold signs and to demonstrate disagreement in other ways as long as the methods used do not “prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies. . . and public events.”…
The President of the University and I have apologized to Judge Duncan for a very simple reason – to acknowledge that his speech was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members who wanted to hear them, as a result of the failure to ensure that the university’s disruption policies were followed.
There’s more to the letter about the role of administrators in maintain this space for free speech. Here again, dean Martinez renews her prior criticism of DEI dean Steinbach, saying that her role at the event should have been to remain neutral and ensure the invited speaker was given space to continue his remarks. Instead, she took sides, berated the speaker and praised the actions of the protesters. That leads her to this announcement. [emphasis in original]
First, Associate Dean Tirien Steinbach is currently on leave. Generally speaking, the university does not comment publicly on pending personnel matters, and so I will not do so at this time. I do want to express concern over the hateful and threatening messages she has received as a result of viral online and media attention and reiterate that actionable threats that come to our attention will be investigated and addressed as the law permits. Finally, it should be obvious from what I have stated above that at future events, the role of any administrators present will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard.
As for the students, Martinez concludes that what should have happened in that room was for an administrator to get up and explain to students that some of them were crossing a line which could lead to discipline. But because dean Steinbach didn’t give that warning and instead seemed to praise the behavior of the protesters, it wouldn’t be fair to try to discipline students.
In this instance, however, the failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening
was acceptable or not (and indeed at one point to seemingly endorse the disruptions that had occurred up to that point by saying “I look out and say I’m glad this is going on here”) is part of what created the problem in the room and renders disciplinary sanction in these particular circumstances problematic.
She also suggests that punishing those students who went too far would give a pass to other students who perhaps didn’t quite violate the school’s policy but who nevertheless acted in ways that were inappropriate, i.e. crude signs involving Judge Duncan’s sex life. So instead of punishing some students and giving others a pass, her plan is mandatory free speech training for everyone.
…as one first step the law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession. A faculty committee will plan the session and invite speakers representing a range of viewpoints.
Perhaps the best bit of the letter comes when dean Martinez goes beyond this specific incident or the specific laws and policies and makes a more general case about the necessity of free speech. This is a pretty clear statement against cancel culture.
There are fundamental issues to consider here beyond the issues of formal law and university policy. They have to do with choices for which all of us are responsible in building a community dedicated to learning and to preparation for the practice of law. With regard to the norms of this community, the cycle of degenerating discourse won’t stop if we insist that people we disagree with must first behave the way we want them to. Nor will it stop if we try to shame each other into submission (shaming, the research shows, has precisely the opposite effect in communities constituted by difference). The cycle stops when we recognize our responsibility to treat each other with the dignity with which we expect to be met. It stops when we choose to replace condemnation with curiosity, invective with inquiry. I remain dedicated to cultivating these norms in our community.
That’s a nice sentiment but it’s hard for me to believe the leftists at Stanford Law have any use for it. I guess we’ll see if they decide to protest this letter as well. They certainly won’t be happy that they didn’t get their way.