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Stanford Law's free speech teachable moments

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Stuart N. Brotman

Stuart N. Brotman.

I am a lawyer, First Amendment scholar and an endowed journalism and electronic media enterprise and leadership professor at a major research university. Given these multiple professional identities, my thoughts on a recent headline-grabbing incident at Stanford Law School cannot be summarized by a pithy tweet, which is the coin of the realm in the social media world.

A recent Stanford Law event sponsored by its Federalist Society, a conservative and libertarian legal organization, has received widespread national media attention for the chaos it caused in real time, and more importantly, the threat to free speech that it represents.

The March 9 event titled, “The Fifth Circuit in Conversation with the Supreme Court: COVID, Guns, and Twitter,” involved a packed auditorium of Stanford Law students, including 100 protesters who showed up to loudly interrupt the invited speaker, Judge Stuart Kyle Duncan of the 5th U.S. Circuit Court of Appeals at New Orleans.

Judge Duncan is a noted conservative jurist who has expressed views, both before and after his appointment by President Donald Trump to the federal bench in 2018, that these students found to be contrary to their strongly held political and moral beliefs on issues such as same-sex marriage and transgender rights.

Loudly voiced opposition from protesters was a classic “heckler’s veto” (first coined by the late University of Chicago Law Professor Harry Kalven)—silencing a speaker who they disagreed with by shouting him down—hoping that this would be enough to have Judge Duncan walk away. But this didn’t succeed in full, as Judge Duncan remained at the podium to answer questions from the students, in lieu of the prepared remarks he had planned to deliver.

While this shout-down at Stanford Law provided a media-ready, dramatic and emotionally charged campus event, the media’s response to it similarly spun out of control. By now, the initial story has been written and circulated widely. But there needs to be greater attention in the media and legal communities, focusing on larger issues at play: Both public discourse and trust in the judiciary are suffering.

Stanford Law Dean Jenny S. Martinez wisely recognized that what happened at her esteemed institution provided a teachable moment. Her 10-page letter issued on March 22 to the Stanford Law community reflected well on both her as the school’s leader and on her understanding of legal free speech precedents and values.

In the letter, she took care to differentiate forums and circumstances in which free speech is protected, citing extensive legal precedent. She also noted that the First Amendment bars regulating speech “on the ground that listeners might find its content disturbing.”

“There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak, to avoid giving legitimacy to their views or upsetting members of the community, but history teaches us that this is a temptation to be avoided,” Martinez wrote. “I believe that strong protection for freedom of speech is a bedrock principle that ultimately supports diversity, equity and inclusion, and that we must do everything in our power to ensure that it endures.”

Dean Martinez backed up her words in the letter by announcing a mandatory educational programming for all Stanford Law students in the coming weeks, focusing on freedom of speech and the norms of the legal profession.

Along with Stanford University President Marc Tessier-Lavigne, Dean Martinez also formally apologized to Judge Duncan in a separate letter: “ … to acknowledge that his speech was disrupted in ways that undermine 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.”

The lessons from this event reach well beyond campus settings. In recent years, respect for the U.S. Supreme Court—and the federal judiciary as a whole—has experienced a steep decline among the public at large, according to Gallup, a well-respected national survey firm.

Even before the Supreme Court overturned its long-standing constitutional protection for abortion last year in Dobbs v. Jackson Women’s Health Organization, Gallup surveys found that in 2022, only 25% of U.S. adults had “a great deal” or “quite a lot of confidence” in the Supreme Court. And for the federal judiciary as a whole, a separate 2022 Gallup survey found that trust in the judicial branch had “cratered” since 2020, with less than half of U.S. adults conveying such trust—the first time this has happened since Gallup began surveys in this area in 1972.

At the Stanford Law event, according to a March 10 article from Original Jurisdiction, a Substack by legal journalist David Lat, Judge Duncan reportedly used his smartphone to record the student protesters, leading one observer to note that he looked “more like a YouTuber storming the Capitol than a federal judge coming to speak.” He taunted the students by calling them “juvenile idiots,” noting that the “prisoners were now running the asylum.”

It’s highly unlikely that Judge Duncan would have acted or spoken this way while hearing any cases. His behavior at the event, even though provoked into angry name-calling, will not help the growing perception that federal judges are no longer neutral arbiters, but rather just another group of political combatants in a nation deeply divided into red and blue mindsets.

Perhaps Judge Duncan and his peers would be well advised to review Dean Martinez’s more generalized wisdom. “Naming perceived harm, exploring it, and debating solutions with people who disagree about the nature and fact of the harm or the correct solutions are the very essence of legal work,” Martinez wrote in her letter to the law school community.

“Lively, candid, civil and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty,” she wrote. “Observance of this duty matters most, not least, when we are convinced that others haven’t.”

Put simply, our faith in the rule of law may depend upon judges who are committed to meet this high standard at all times. As a lawyer, and as an American citizen who strongly supports our democratic institutions, I recognize how important it is to reverse the troubling trend of declining confidence in our judicial branch.

And in all my professional identities, I welcome more media coverage that helps foster further discussion about greater respect for free speech values on college campuses and supports judges in following the example of Stanford Law Dean Martinez—so they can better reflect their positions of leadership in the legal community and society at large.

See also: “Stanford apologizes after conservative federal appeals judge is heckled during Federalist Society talk”

Stuart N. Brotman is a professor of journalism and electronic media enterprise and leadership at the University of Tennessee at Knoxville, where he also serves on the Institute for Professional Leadership Advisory Board in its College of Law. He is the author of The First Amendment Lives On. is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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