Stanford Law students shout down 5th Circuit judge: A post-mortem

In the latest example of law students and administrators being unable to face opinions with which they disagree, students at Stanford Law School disrupted a student-organized event featuring a federal appellate judge last week.

On Thursday, U.S. Fifth Circuit Court of Appeals Judge Stuart Kyle Duncan attempted to speak at an event hosted by Stanford Law School’s Federalist Society chapter, entitled “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.” But Judge Duncan was thwarted by dozens of protesters who attended the event to heckle him.

At that point, Stanford should have stepped in to remove the disruptors. The university calls freedom of speech “core to the mission and academic life of our university” and bars disrupting university events. And yet, when a law school diversity administrator was called in to restore order, she whiffed on enforcing those clear policies — instead, taking over the podium to deliver prepared remarks praising the hecklers and suggesting Stanford may want to rethink its stance on protecting speech that upsets students. 

Judge Duncan spoke out publicly, criticizing the university and calling the event a “setup”

In the intervening days and after a letter from FIRE, Stanford’s president and the dean of its law school responded with strong support for free speech, saying the handling of the event “went awry” and issuing an apology to Judge Duncan.

Here’s a round-up of everything we know about what happened and the fallout. We also attempt to answer the lingering question: Where do we go from here?

Criticism before the event

After Stanford’s student chapter of the Federalist Society announced Judge Duncan’s speaking appearance, more than 70 students emailed the group asking it to cancel the event or move it online, claiming Duncan has “proudly threatened healthcare and basic rights for marginalized communities.”

Stanford University: Law Students, Administrator Disrupt Federalist Society Event Featuring 5th Circuit Judge

Case Detail

FIRE wrote Stanford after a Fifth Circuit Judge Stuart Kyle Duncan attempted to speak at a Federalist Society-organized event when dozens of protesters heckled him, preventing him from finishing his remarks.

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Students posted flyers critical of both Judge Duncan and the Federalist Society for inviting him. One flyer included images of all the students on the Federalist Society’s board, reading “You should be ashamed.” Another flyer criticized Judge Duncan, saying among other things that he has fought to “deny same-sex couples the right to marry” and to “deny reproductive healthcare.” Still another flyer listed a number of “dishonorable mentions” that Judge Duncan allegedly committed, including “deliberately misgendering” a defendant in court and trying to “strip [a] lesbian mother of parental rights,” among other allegations. 

The flyers constitute political criticism under Stanford’s free speech policy, and FIRE would defend the right of students to post them. But those objecting to Judge Duncan’s event went further. 

The morning of the event, Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach emailed the Stanford Law community reiterating student criticisms of the event, reminding students of the school’s free speech policies, but saying the event would be a “significant hit” to students’ sense of belonging.

As would soon become clear, these lead-up efforts set the stage for a heckler's veto of the event, which upon its commencement appeared to be populated with dozens of students keen to disrupt Judge Duncan from speaking. 

The event

Before the lunchtime event, students opposing Judge Duncan gathered in the Russo Commons, Stanford’s student law lounge. Lawyer and journalist David Lat reported that FedSoc student members went into the lounge to eat their lunch, not knowing protesters were there preparing for the event. The FedSoc members left after being told that the protesters were trying to create a “safe space” for the LGBT community and that FedSoc members were not welcome.

When the event was set to begin, about 100 protesters booed those who entered from outside the building. In the room that hosted the event, 50 to 70 student protesters entered carrying signs that read, per Lat’s report, “RESPECT TRANS RIGHTS,” “FEDSUCK,” “BE PRONOUN NOT PRO-BIGOT,” and “JUDGE DUNCAN CAN'T FIND THE CLIT,” among others.

As the FedSoc president began the event, student protesters heckled. And when Judge Duncan took the podium, the event devolved into a shouting match.

For about the next 10 minutes, students yelled at Judge Duncan as he attempted to give his prepared remarks. Administrators took no action. Judge Duncan became angry and called the students “juvenile idiots” and said the “prisoners were now running the asylum.” He then asked an administrator to help. 

That’s when DEI administrator Steinbach took the stage, prepared remarks in hand, and asked, “Is the juice worth the squeeze?” In other words, is it worth Stanford having strong protections for free speech if it means speakers like Duncan, who cause “harm,” are allowed to speak at the law school?

As Duncan tried to continue with his speech, Steinbach and protesters continued to insist that he let her finish. Steinbach asked Duncan if he had something so “important to say about Twitter and guns and COVID that is worth this impact” on students. She also said, while interrupting Duncan’s speech, that she is “not in the business” of wanting to “shut down speech.” She later told students, “If you do choose to stay here, I do think we should give space to hear what Judge Duncan has to say, and I hope that also you will take the question and answer and comments section to say what you need to say and ask the questions you need to ask.”

But a summary hardly does justice to Dean Steinbach’s time at the podium and her extended remarks, which we urge you to watch on video or read in full.

Unable to finish his speech, Judge Duncan had to go straight to Q&A, where some students accused him of suppressing the voting rights of African Americans, citing a case where Judge Duncan had actually dissented from the majority opinion. Another student said, “I fuck men, I can find the prostate. Why can’t you find the clit?” Duncan said the questions asked were similar to, “How many people have you killed?” and, “How many times did you beat your wife last week?”

Federal marshals later escorted Duncan out, saying they were there to protect him.

News of the disruption broke the next morning.

The fallout

FIRE wrote Stanford Friday, expressing concern for the university’s capitulation to the heckler’s veto and for Steinbach’s censorship-promoting remarks. As we told Stanford:

Of course, not all protest during a speech is sufficiently disruptive; for example, protestors peacefully holding signs in the back of an auditorium or offering fleeting commentary are unlikely to be so disruptive as to prevent an event from proceeding. However, when protesters talk over a speaker or cause other disruption such that the event is functionally unable to proceed as planned, Stanford must use all the resources at its disposal to prevent this pernicious form of mob censorship. Would-be disruptors must know Stanford will not tolerate the heckler’s veto and that the university will take swift action to remove anyone who violates the university’s clear policies to that effect. Dean Steinbach’s comments caught on video make it woefully unclear as to whether Stanford will stand up for speech or not.

Judge Duncan spoke out publicly, criticizing the university and calling the event a “setup” because Steinbach had a printed speech prepared. He told Lat, “​​the fact that the administration was in on it to a certain degree makes me mad.” But he said he feels “outraged” for the FedSoc students — whom he said the protesters are “marginalizing” and “not recognizing their existence.”

“Don’t feel sorry for me," Judge Duncan told the Free Beacon. “I’m a life-tenured federal judge. What outrages me is that these kids are being treated like dogshit by fellow students and administrators.”

That evening, Stanford Law Dean Jenny Martinez released a statement to all law students stating, “the way this event unfolded was not aligned with our institutional commitment to freedom of speech.” The statement read, in part:

The school is reviewing what transpired and will work to ensure protocols are in place so that disruptions of this nature do not occur again, and is committed to the conduct of events on terms that are consistent with the disruption policy and the principles of free speech and critical inquiry they support. Freedom of speech is a bedrock principle for the law school, the university, and a democratic society, and we can and must do better to ensure that it continues even in polarized times.

The next day, Stanford President Marc Tessier-Lavigne and Dean Martinez sent Duncan a joint letter apologizing for the disruption at his speaking event and stating that “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.” And Dean Martinez wrote Stanford Law alumni today clarifying that “freedom of speech is a bedrock principle for our community at SLS, the university, and our democratic society.”

Those words are great on paper, but what about when an event actually happens? Will administrators again stand by and watch — or worse, interrupt to give their own set of prepared anti-free speech remarks? Time will tell.

What now?

If Stanford truly believes free expression is “core to the mission and academic life of our university” they have to put those policies into practice. Values of free expression and diversity and inclusion aren’t mutually exclusive, as some of Duncan’s protesters — and Dean Steinbach, it seems — would have us believe. 

Stanford can support diversity initiatives as long as those efforts don’t come at the expense of basic rights like free speech and due process. After all, good free speech policy protects the right of Duncan’s critics to protest him peacefully, hang anti-FedSoc flyers on campus, and speak out forcefully against judicial decisions they think are “bigoted.” But they cannot shut down conversation around these important issues with mob censorship, using the heckler’s veto to infringe the rights of peers who wish to consider Duncan’s message. 

FIRE will be watching to ensure students and administrators know those policies will be enforced.

Last week’s controversy makes clear many in the Stanford Law community don’t understand this basic principle and, if given the opportunity, would be eager to gut their own rights to get at speech they dislike. 

Law students especially must know how to confront opinions they dislike in a constructive, lawful manner. Stanford’s law students should know these basic obligations. But as we wrote in our letter to Stanford, Dean Steinbach’s comments and the students’ actions “make it woefully unclear as to whether Stanford will stand up for speech or not.” 

The responses of Stanford higher-ups in intervening days have been encouraging. But like the university’s free speech policies that went unheeded Thursday, free speech commitments are plentiful at Stanford. 

FIRE will be watching to ensure students and administrators know those policies will be enforced.

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).