Perspective: A voice for our time at Stanford Law School

The recent kerfuffle at Stanford Law School, where a federal judge was invited to speak and then had his speech hijacked because of his conservative views, has been all over the news. The saga has included an apology by the law school, an administrator placed on leave, and the promise of an all-school half-day training session for Stanford’s budding lawyers on the principle and practice of free speech.

Somewhat buried in the drama is something important that should be rescued from the slipstream of events.

Jenny Martinez, dean of Stanford Law School, penned a 10-page essay — a legal brief —explaining the rights, wrongs and responsibilities of free speech in the U.S.

It is masterfully argued, as we might expect from the dean of one of the most prestigious law schools in the nations. Hers is a voice for our time. And the essay she has written is one for our time as well.

As American political views have become not only more polarized, but more contentious, over time, we have seen attempts on both the right and on the left to undermine free speech. There is even loose and reckless talk of dividing the nation into separate entities. Many have speculated on the causes of this rancor, from the advent of social media, to disinformation campaigns, alienation, COVID-19 lockdowns, rising crime rates, drug use, you name it.

While our nation may never be able to cure all of those ills, what it can do to help is to doggedly uphold the principle of free speech. As disagreeable as it may be to hear the speech of someone who believes differently than you, free speech is the bedrock of all we hold dear, be it democracy, human rights, morality, diversity or any other good.

Martinez begins her argument by shelving two popular but wrong ideas about how free speech is practiced under U.S. law. First, she says, “the First Amendment does not give protesters a ‘heckler’s veto’ ... even in public forums such as the public streets, sidewalks, and parks, where free speech rights have greatest latitude, it is well-settled that the First Amendment allows the imposition of reasonable content-neutral time, place and manner restrictions.”

Shouting down someone so they cannot be heard is not a First Amendment right. Neither, we would assume, is canceling them.

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Second, “the First Amendment bars regulation of speech on the ground that listeners might find its content disturbing.” Established in a series of prominent court cases, the quintessential example of this principle was when the American Civil Liberties Union sued to allow neo-Nazis to march through the Chicago suburb of Skokie, Illinois, in 1978 and won. (I do wonder whether the ACLU of 2023 would do the same.)

Martinez reminds her students that these principles are still in force, no matter how badly their feelings are hurt because others — in this case, the conservative Federalist Society and its invited speaker, Judge Kyle Duncan — do not agree with their viewpoints.

“The Federalist Society has the same rights of free association that other student organizations at the law school have,” Martinez writes. “Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.

“To do so would also be inconsistent with the Stanford Statement on Academic Freedom’s requirement that ‘(e)xpression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.’ Unless we recognize that student members of the Federalist Society and other conservatives have the same right to express their views free of coercion, we cannot live up to this commitment nor can we claim that we are fostering an inclusive environment for all students.”

The principle of inclusivity thus demands the inclusion of those with whom we disagree. Diversity is not true diversity if it does not include diversity of viewpoint. As Martinez puts it, “We support diversity, equity, and inclusion when we encourage people in our community to reconsider their own assumptions and potential biases. We support diversity, equity, and inclusion when we encourage students to connect with and see one another as people.”

Shouting down, excluding, canceling and deplatforming then are antithetical to free speech and cannot be acceptable in a democratic society. But Martinez goes further: Also anathema would be the imposition by authorities of what constitutes acceptable speech, she says.

“I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups. We see this today, both around the United States and around the globe. And at key moments in history, robust protection for the rights of association and speech has been critical to the advance of social movements for historically marginalized groups.”

And so, says Martinez, Stanford Law School will not be announcing institutional positions on current affairs, will not enforce an institutional orthodoxy and will not be party to creating an echo chamber for its students.

In fact, if a lawyer can’t argue both sides of an issue convincingly, they aren’t cut out for the profession. She reminds the law students that if doctors can be expected to face death and suffering in the discharge of their duties, lawyers can at least face the burden of having to experience disagreement with other people in their line of work.

This is all very refreshing in its common-sensical, law-based approach. But are common sense and respect for the law still in vogue? Not in some circles.

Wayne State University in Detroit just suspended a professor for a social media post that said it was more admirable to kill those with whom we disagree than to shout them down, saying the post was “at best, morally reprehensible and, at worst, criminal.”

Contrast this with Martinez’s inspirational concluding thoughts:

“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.”

Amen. The temptation to shut down all discussion by fiat or force is one we must resist if we are to stand fast against the authoritarianism that lurks in the wings of both extremes of the political spectrum. When Benjamin Franklin quipped after the Constitutional Convention of 1787 that Americans had “a republic, if you can keep it,” those words now hit home with a dread significance, for it is unclear if we will be successful in that task. Brava to Jennifer Martinez, who insists we take a better path than the one we’re now taking.

Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.