When it comes to rights, deserve’s got nothing to do with it.
When accused murderers and rapists get jury trials, we don’t — at least, outside of Facebook — say they don’t deserve one because they wouldn’t give a trial to their victims. When people’s First Amendment rights are on the line, we don’t ask whether they sincerely support free speech before protecting them. Only fools or dupes imagined that the Nazis marching at Skokie would have instituted a society characterized by broad free speech rights if they had their way. Rights protect awful totalitarian people all the time. There are many philosophical reasons for this; one is the recognition that we can’t be trusted to decide who should or shouldn’t get rights, and that arrogating such power to ourselves will inevitably favor the powerful and popular over the powerless and unpopular.
That’s why the whole notion of “free speech heroes” is dicey. Plenty of people who stand up for their own free speech rights would cheerfully infringe on the rights of others given a chance. Professors who are fighting unjust investigations sue students on bogus defamation theories. Supposed champions of the First Amendment become eager professional censors. We all constantly struggle against the tide of the instinctual human position “speech I like should be protected and speech I hate should be punished.” But we like simple stories, and we like heroes, so when someone’s speech is wrongly suppressed, we battle a cultural inclination to make them into noble, admirable victims.
Usually they’re not, and wanting them to be heroic clouds our thinking.
Judge Kyle Duncan Doesn’t Have Twitter So He Uses Fifth Circuit Opinions For Pronoun Rants
Take Judge Kyle Duncan of the United States Court of Appeals for the Fifth Circuit. Judge Duncan is in the news because he got shouted down by students when invited to speak at Stanford Law School by its Federalist Society. In the wake of this incident, everyone’s scrambling to find heroes. There aren’t any. Just about everyone sucks.
No doubt Judge Duncan is smart, but he didn’t get to be a federal judge by being unusually smart, or an unusually good lawyer. President Trump appointed him because he was a young, aggressive, telegenic anti-gay and anti-progressive activist. Kyle Duncan the lawyer was a culture warrior, and appointing him was a salvo in the war. Judge Kyle Duncan is more of the same. He’s known for things like monologuing in self-congratulatory fashion about why he won’t address an incarcerated litigant by their preferred pronouns. This, plus the odd attempt to overthrow the government, is what passes for courage and principle in the 21st-century Federalist Society and for judicial restraint on the Fifth Circuit. Oh, bravely done, Judge Duncan, no doubt: you put that woke trans prisoner in her place. For the Republic.
This led the Stanford Federalist Society to invite Judge Duncan to speak to them. The Stanford FedSoc — perhaps still reeling from the unspeakable injustice of being lightly mocked — wanted a headliner. What kind of headliners get invited to FedSoc events? There are two kinds. There are super-brilliant people who are on the cutting edge of important issues, and there are elbow-throwing clownholes. Judge Duncan isn’t dumb but he’s not Learned Hand and his jurisprudence didn’t get him invited to Stanford. He got invited because he was, and remains, a culture warrior. He got invited because he’s controversial. His invitation was a statement by FedSoc members to fellow students and America. If you’re feeling charitable the statement was “we defy groupthink and dare to consider unpopular ideas and modern blasphemies.” If you’re feeling uncharitable — or, in my view, realistic — the message was “lol, fuck you.” The FedSoc members didn’t think “Judge Duncan explains Colorado River abstention better than anyone and we need to hear from him.” The FedSoc members thought “Judge Duncan put that pronoun freak in its place and inviting him will own the libs.”
Useful Idiocy v. Trollish Victimology
Stanford students set out to protest the deliberately provocative invitation of Judge Duncan. They started great, modeling the variety of means available to them. They put up fliers denouncing Judge Duncan and FedSoc, they led a vigorous protest in the halls, they arrived at the speech with suitably blunt signs about Judge Duncan. Now, critics will fault them for even this, tone-policing their messages or suggesting that they ought to just sit down and have a Platonic dialogue with Judge Duncan or portraying the FedSoc members as victims of callout culture and shunning. That’s all bullshit. The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense. Put another way, if you say “fuck you” to your classmates, they may say “fuck you” back. If you set out to provoke a response, put on your big boy pants when you get one.
But that wasn’t enough for students. “Assholes have a right to speak” is not a universal value and never has been. Stanford students attempted to shout Judge Duncan down and prevent him from speaking and his willing audience from listening. You will see factual disputes about how disruptive they actually were and how much they were trying to prevent him from speaking as opposed to just offering some light catcalling, but the videos and eyewitness reports make those apologias unconvincing, particularly in light of the fact that the student protester attitude is often “you’re goddamned right we shouted that asshole down.” Conservatives, on the other hand, will try to portray the students as a violent mob, which isn’t right either.
It went worse from there. Judge Duncan engaged in a “dialogue” with students characterized by petulance and unseriousness, both exchanging insults with protestors and treating even legitimate (if pointed) questions as insults. Look, if protesters are yelling insults at you, you don’t have to talk to any of them. But you don’t get to pose as the icon of civilized discourse and get into an insult-match with them. Pick a lane. On the other hand, if you’re yelling insults at someone, you don’t get to act wounded when they bark insults back. Some commentators have tried to portray students as victims for not getting polite responses to hurled invective. That’s silly. Grow up.
Stanford, institutionally, made it much worse, sending an associate dean to do a grown-up’s job. Tirien Steinbach, Associate Dean for Diversity, Equity & Inclusion, indulged in a colloquy that more or less challenged the entire concept of universities tolerating speech that some people don’t like. Steinbach, though ultimately and reluctantly asking students to let Judge Duncan speak, articulated the modern view that if some people assert your words and actions have been harmful, then maybe you shouldn’t speak on any topic: “I mean is it worth the pain that this causes and the division this causes? Do you have something so incredibly important to say about Twitter and guns and COVID that it is worth this impact on the division of these people . . . ?” Stanford’s President and Stanford Law’s Dean have since apologized to Judge Duncan, but in a rather ambiguous way that does not serve to clarify exactly what its expectations are of students and administrators.
Judge Duncan, as I said, is smart, if not necessarily so smart you’d miss a nap to hear him speak. He knew that he’d be a controversial speaker. He came prepared. It seems fairly clear that he arrived with an agenda: play the wronged innocent, contrive defiance, and the popular conservative victimhood tour. Look, when someone comes at you seeking martyrdom, you’re under no moral obligation to give it to them. Wise people might not have fed the troll. Law students are smart, not wise. Law students are reliably useful idiots, and 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. 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.
HATE. LET ME TELL YOU HOW MUCH I’VE COME TO HATE YOU SINCE I BEGAN TO LIVE.
Everyone in this story makes me angry.
Judge Duncan is part of a culture of turning the federal judiciary into a conservative grievance LiveJournal. He’s also part of a pathetic culture of conservative victimology and free-speech hucksterism. The American right is trumpeting a purported concern for freedom of speech, based mostly on cries of “cancel culture” and gripes about how other people are using their free speech and association, while campaigning vigorously to use government force to limit speech they don’t like. The Federalist Society is complicit, off the bench and on it.
The right-wing media (check out the links in item 6 on David Lat’s update) is campaigning to make money and clicks off of that conservative victimology. In the process it’s undermining everything that was ever admirable or worthwhile about American conservatism and making it into a cult of crybabies. Meanwhile, it’s torpedoing whatever American consensus we’ve ever had in favor of free speech values, conveying to half of America’s youth that free speech is cynical bullshit and to the other half that it’s a bludgeon to own the libs.
Associate Dean Steinbach and her ilk are campaigning to undermine free speech legal and social norms, striving to make someone’s subjective reaction to speech an unquestionable justification for suppressing it. Academic freedom is under state assault and she’s busily undermining it and telling students they have a right to shut people up.
Stanford, and schools like it, are shitting the bed over controversial speakers. Decide that students can shut down speeches they don’t like, if you want to take that path. If not, protect speakers from disruption and have the students escorted out if they shut down a speech. Don’t half-ass it and then apologize afterwards.
And students. Students think that they should be able to dictate which speakers their peers invite, who can speak, what they can say, and who can listen. They’re not satisfied with the most free-speech-exceptionalist system in the world that lets them respond to speech by assembling, protesting, and reviling people of authority like Judge Duncan. They demand the right not just to speak, but to control the speech of others. That’s straight-up thuggish, an aspiration born of a fascist soul. These are law students. They are training to express themselves for a living. If their view is “we can’t respond to awful speech, we can only stop it from happening,” then they’re going to be terrible lawyers.
Law students also persist in imagining that they invented the world. They believe they discovered that free speech laws and norms protect awful speech and awful people. They believe they discovered the plea “yes, but what you don’t understand is that this speech is really bad.” They believe that they are so self-evidently right, good, trustworthy, and noble that it’s obvious that we should let them decide who talks and who doesn’t. And they are too hubris-swollen — not too stupid, but too drunk with self-righteousness — to see that exceptions to free speech have always been used most harmfully against the powerless, and always will be. They’re too full of themselves to see that “let a crowd decide who is allowed to speak” is a horrific norm to promote with grotesque historic resonance. Some of them will grow out of this.
Finally, they’re law students, and they’re making people stupider about the law:
No, you grade-inflated imbeciles. Stanford is a private institution, and normally the First Amendment would not govern it. However, California has Leonard’s Law, a statute requiring private universities to extend the same level of free speech to their students. So you can say that Stanford must obey the First Amendment in disciplining students. And, when they let students put up angry and vituperative fliers, and assemble to protest, and carry signs, and be disrespectful, that’s what they’re doing. However, shouting down is not protected by the First Amendment. Neither is pulling the fire alarm, setting off an airhorn, or making bomb threats to stop the speech from happening. You couldn’t pass a law that said “no shouting down conservative speakers” or “no shouting down political speakers,” because those wouldn’t be content-neutral, but you can absolutely prohibit disrupting someone else’s exercise of free speech so long as you do so in a content-neutral way. (Thumbs up on that flier in the middle about the whiny pissants of FedSoc trying to get someone expelled for making fun of them, though.)
This is relentlessly grim. Nobody in this story makes me optimistic about America.