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A confrontation this month between a conservative judge and left-wing students at Stanford Law School may mark a turning point in the free speech debate, said a prominent legal writer and analyst who has covered the controversy closely.
According to David Lat, who writes about legal issues in his Substack newsletter, a 10-page memo responding to the incident released last week by Stanford Law School Dean Jenny Martinez should have a lasting impact.
“There have been ringing defenses of academic freedom and free speech over the years … but I'm not aware of anything as comprehensive as the Martinez memo, at least within the past three to five years,” Lat, a former federal prosecutor, or assistant U.S. attorney, in Newark, N.J., told Yahoo News.
Lat compared Martinez’s memo to several other “pronouncements” in the realm of “campus free speech issues” that he said have “acquired canonical status” over the last few decades. “And now we have a new addition to their august ranks: the Martinez Memo. … This is what leadership looks like,” he wrote on his Substack.
The Martinez memo laid out a detailed legal argument for why the Stanford protesters’ behavior was not protected by the Constitution and was in violation of school policy. It also clearly rebuked an administrator for failing to enforce these standards. Martinez said Stanford Law students will be required to attend a training session on free speech this spring.
The imbroglio is the latest in a string of similar incidents over the last several years on college campuses. Yet this one appears to have hit a particular nerve, with conservative media outlets quickly jumping on the story and the debate spreading to major media outlets and talk shows.
Martinez, who served as a law clerk for former liberal Supreme Court Justice Stephen Breyer, had already apologized to Kyle Duncan — a federal judge on the U.S. Fifth Circuit — for the actions of Stanford students when Duncan addressed the campus branch of the Federalist Society, a conservative legal group, on March 9.
But in her memo, Martinez explained her view that the First Amendment’s free speech protections did not apply to the actions of the students, who protested Duncan and repeatedly interrupted him as he attempted to give his remarks.
“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,’” Martinez wrote.
“While the First Amendment bars regulation of speech on the ground that listeners might find its content disturbing … the First Amendment permits the regulation of speech that ‘substantially impairs the effective conduct of a meeting,’” Martinez wrote. “Modern First Amendment law does not treat every setting as a public forum where a speech free-for-all is allowed.
“To the contrary, First Amendment cases have long recognized that some settings are ‘limited public forums,’ where restrictions on speech are constitutional so long as they are viewpoint-neutral and reasonable in light of the forum’s function and all the surrounding circumstances,” the dean noted.
Martinez wrote this memo after students in a constitutional law class, upset that she had apologized to Duncan, covered the walls of her classroom with fliers arguing that the protesters had been exercising their First Amendment rights.
Martinez forcefully rejected this argument, and her lengthy memo cited numerous legal opinions and legal experts, including a Washington Post op-ed on the “heckler’s veto” written last year by the dean of the Berkeley Law School, Erwin Chemerinsky, and Howard Gillman, chancellor of the University of California, Irvine.
“Freedom of speech does not include a right to shout down others so they cannot be heard,” Chemerinsky and Gillman wrote.
Chemerinsky and Gillman made the same distinction that Martinez did — between broader, bigger, more public settings and the more focused purpose of a smaller meeting on a college campus.
“In public parks, nothing stops opposing parties from shouting at each other until no one can be heard. But this is never tolerable at colleges when members of the campus community have organized events for the purpose of hearing particular points of view,” Chemerinsky and Gillman wrote.
“Colleges and universities must be clear and emphatic that attempting to shut down such events will not be tolerated and those engaging in it face disciplinary action.”
Critics of the Martinez memo have argued that Duncan was not barred from speaking, and so was not subject to a “heckler’s veto.”
“[Martinez], and the Federalist Society grifters she's now carrying water for, have consistently overlooked the fact that Duncan was not prevented from speaking. Instead Duncan, like a petulant child, decided not to give his speech and instead went straight to the [question-and-answer period],” Elie Mystal, justice correspondent for the Nation, told Yahoo News.
“What Martinez is doing is a trick more common to politicians and columnists than educators: She's describing a situation that didn't happen and then explaining how that situation would be wrong,” Mystal said.
Lat obtained audio of Duncan’s appearance at Stanford and published it on his Substack. “From the beginning of his speech, the protestors booed and heckled continually. For about ten minutes, the judge tried to give his planned remarks, but the protestors simply yelled over him,” Lat wrote.
Duncan then “became angry, departed from his prepared remarks, and laced into the hecklers,” Lat wrote. “He called the students ‘juvenile idiots’ and said he couldn’t believe the ‘blatant disrespect’ he was being shown after being invited to speak. … His pushback riled up the protesters even more.”
At this point, Duncan asked if there was a school administrator in the room who could restore order. That’s when Tirien Steinbach, Stanford’s associate dean for diversity, equity and inclusion, came forward.
Steinbach read from a typewritten set of remarks for roughly six minutes, in which she told Duncan that “for many people here, your work has caused harm.”
She told Duncan that “you are absolutely welcome in this space” but said 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.”
Steinbach also questioned whether what Duncan had to say was “worth the pain that this causes and the division that this causes.”
Many of the anti-Duncan protesters applauded Steinbach’s remarks and then walked out of the room. At that point, Duncan came back to the podium.
“I didn’t see how I could continue, so after the partial walkout, I dispensed with my prepared remarks and opened the floor,” he wrote in a Wall Street Journal op-ed. He also said that on his way into the room, one of the protesters had yelled at him that they hoped his daughters would be raped.
For about 18 minutes, he engaged in a contentious back-and-forth with students in the room. He ended the session by saying, “Thanks to the Federalist Society for inviting me. As for the rest of you people, whatever.”
Martinez, the law school dean, has been openly critical of Steinbach’s handling of the incident, and Steinbach is now on leave.
“When a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying,” Martinez wrote.
“That imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.”
Martinez said she stood by her March 11 letter of apology to Duncan, which said that “our disruption policy states that students are not allowed to ‘prevent the effective carrying out’ of a ‘public event’ whether by heckling or other forms of interruption.”
“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,” Martinez wrote in her initial letter.
As for student protesters and critics who said that Duncan — who has been a lightning rod of controversy for years — conducted himself unprofessionally and that his behavior escalated the situation, Martinez said “these arguments misunderstand the nature of the disruption policy.”
“The policy would not be meaningful to protect the carrying out of public events and the right of attendees to hear what is said if it applied only when a speaker said things protesters in an audience found agreeable,” Martinez wrote.
“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.
“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,” she said.
Martinez said Stanford Law will hold a “mandatory half-day session … on the topic of freedom of speech and the norms of the legal profession.”
Day 14. Dean Martinez has announced who will be held accountable for disrupting a speaking event in violation of the SLS's rules and the rights of the speaker to speak and listeners to hear. Nobody. No investigation. No disciplinary proceedings. Lofty rhetoric; no accountability.
— Robert P. George🇻🇦🇺🇸🪕 (@McCormickProf) March 23, 2023
Martinez has been criticized by some figures on the right for not punishing individual students involved in the protest. But she said Steinbach and other Stanford administrators in the room had failed to “administer clear and specific warnings,” sent “conflicting signals about whether what was happening was acceptable or not” and even appeared to “endorse the disruptions.”
All this made “disciplinary sanction in these particular circumstances problematic,” Martinez said.
Steinbach defended herself in a Wall Street Journal op-ed of her own last week. “I stepped up to the podium to deploy the de-escalation techniques in which I have been trained, which include getting the parties to look past conflict and see each other as people,” she wrote.
One of the most scathing critiques of all involved came from criminal defense attorney Ken White, who writes about legal affairs at his Substack, The Popehat Report.
White said that Duncan’s appearance at Stanford was “deliberately provocative,” that he was invited by the Federalist Society’s Stanford chapter “because he was, and remains, a culture warrior … because he’s controversial.”
But, White wrote, arguments that Duncan was not shouted down are “unconvincing.” The protesters, he wrote, “played their role in the conservative pantomime perfectly.”
“It was as if they arrived with a giant gift basket and magnum of champagne to wish Judge Duncan a bon voyage on his cruise of right-wing grifty victimhood,” White wrote.
“The protestors’ ‘we get to say who talks and who listens’ reception at Stanford will be hot-burning fuel in the right-wing engine that seeks to use the force of law to restrict expression on college campuses to suit conservative tastes.”
White linked to the Foundation for Individual Rights in Education’s list of states in which legislatures have recently passed legislation “banning ideas” they don’t like from college campuses.
As for Lat, he told Yahoo News that he is “on the whole … optimistic about the state of free speech on campuses going forward, based largely on the strong public reaction against things like attempted shout-downs of speakers.”
He acknowledged, however, that “polarization in our broader society, which is driving a lot of what you see on campuses, doesn't seem to be abating.”
As a result, he argued, “the university incidents are used by partisan media to fan the flames, which fuels further polarization.”