Judge Duncan’s Struggle Session Shows Why We Need Fiercer Protection of Free Speech
BY: SAMUEL MANGOLD-LENETT | MARCH 27, 2023
Read more at https://thefederalist.com/2023/03/27/judge-duncans-struggle-session-shows-why-we-need-fiercer-protection-of-free-speech/
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The culture of free speech that for so long characterized American academia is dead. Increasingly, struggle sessions and violent eruptions are how the nation’s best and brightest choose to handle the ideas, individuals, and situations that make them uncomfortable.
Earlier this month, Fifth Circuit Court of Appeals Judge Kyle Duncan was invited by the Stanford Federalist Society to their law school to give a talk titled “Covid, Guns, and Twitter.” What ensued is what has become the norm. A coalition of the dysgenic and well-dressed filled a lecture hall to shout down and demean a federal judge while a school diversity administrator chastised him with prepared remarks.
Disagreement is OK and clearly would have been welcomed by Duncan, but when students feel emboldened to tell a federal judge, “We hope your daughters get raped,” as one individual allegedly did, a course correction is desperately needed.
On Friday, Duncan addressed this very topic in a talk titled “Free Speech and Legal Education In Our Liberal Democracy” at the University of Notre Dame’s Center for Citizenship and Constitutional Government.
“This is a talk about another talk,” Duncan quipped to inform those in the audience who were unaware that he would be, in part, discussing the incident at Stanford.
In a general defense of student protests, Duncan stated, “It’s a great country where you can harshly criticize federal judges and nothing bad will happen to you. … The students at Stanford and other elite law schools swim in an ocean of free speech. … Has any group of people ever been so privileged?”
Continuing, the judge referenced a memo published on March 22 by the dean of Stanford Law, Jenny Martinez, in which she condemned the disruptions and “threatening messages directed at members of [the Stanford Law] community” and pledged to adopt stricter policies regarding event disruption.
Martinez’s memo specifically contrasts student protests with malicious disruptions, noting that universities, as institutions, have unique obligations to curtail the latter in the pursuit of academic freedom through the enforcement of conduct codes and administrative policies. And as Duncan noted, a rigid commitment to the cause of academic freedom is absolutely vital to both the preservation of the university system and American society.
The universities that, at one point in time, were renowned for their unyielding commitment to free speech and the relentless pursuit of excellence in all things, to this day — despite the diminishing quality of graduates — still churn out leaders in every single sector.
Noting the undeniable trend of woke radicalization among young people in elite universities and the threat it poses to the maintenance of civil order and liberal democracy, Duncan asked, “What would happen if the cast of mind in that Stanford classroom becomes the norm in legislatures, in courts, in universities, in boardrooms, in business, in churches?”
“We must resist this at all costs,” Duncan continued. “Otherwise, we will cease to have [the] rule of law.”
Toward the end of her memo, Martinez also ruled out disciplining the individuals who disrupted Duncan’s lecture at Stanford Law, as it would be onerous to discern which students “crossed the line into disruptive heckling while others engaged in constitutionally protected non-disruptive protest” and that university administrators sent “conflicting signals about whether what was happening was acceptable or not.”
Instead, the offending students — along with the rest of the law school’s student body — will be required to attend a “mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession.”
In the final moments of his speech at Notre Dame, Duncan mentioned he was “cautiously encouraged” by this measure as it indicated Stanford Law’s leadership was in some form committed to fighting for the foundational principles of American academia. He also noted that the point of the struggle session wasn’t purely to intimidate or dissuade him. After all, he’s a federal judge — he has life tenure; his future is secure.
The point of heckling Duncan, denying him a chance to make his case, and even wishing rape upon his children was to make an example out of him and to intimidate the students who invited him to speak. The disruptors want to destroy what is left of American civil society and replace it with an even more omnipresent woke authoritarianism, further preventing the dissemination of dissent. In order to accomplish this, they need future generations of leaders — their classmates — to be afraid, so they jeer and they threaten.
This ethos, one that is undeniably a well-established, if not the dominant, worldview on American campuses, cannot be remedied through scolding. Half-day sessions “on the topic of freedom of speech and the norms of the legal profession” might knock some sense into a couple of dozen Stanford Law students, but what about every other campus in the U.S.?
Days after the incident at Stanford Law, militant Antifa groups descended upon the University of California, Davis, in an attempt to prevent Charlie Kirk, founder of the conservative student organization Turning Point USA, from speaking on campus. Prior to the event, Gary May, the chancellor of UC Davis, circulated a video claiming Kirk “advocated for violence against transgender individuals.” Ultimately, the militants were unsuccessful in their attempts, but unlike at Stanford, the disruptors attempted violence and destroyed public property in the pursuit of denying an individual’s right to free speech.
How much longer can we continue to delude ourselves about free speech? There are, to be sure, legal protections for speech, but the leftists who control the institutions where these protections are most needed (academia, Big Tech, et al.) actively eschew and chip away at them in collaboration with the federal government.
A more muscular approach to protect the speech of Americans is needed.
In 2019, President Donald Trump issued an executive order requiring American universities “to foster environments that promote open, intellectually engaging, and diverse debate [ ] through compliance with the First Amendment” in order to access specific federal funds.
But even this, as we can see, didn’t — rather, it couldn’t — address the underlying ideological issues at play.
Sure, threatening to cut off federal grants might encourage university administrators to be more vigilant in their defense of (or less hostile in their attacks on) free speech. But, at the end of the day, the left controls these institutions and interprets “free speech” in a way that is fundamentally at odds with the American founding and the First Amendment; speech must be contained within their preferred paradigm, or else it and anything descending from it is an affront to their very existence and must be eradicated.
Back at Stanford Law, Tirien Steinbach, the diversity administrator who chastised Duncan, has been put on leave, and per Martinez’s memo, an explicit role of other Stanford Law administrators moving forward “will be to ensure that university rules on disruption of events will be followed, and all staff will receive additional training in that regard.”
So perhaps Duncan is right to be somewhat optimistic.
In a less-noted move, the court also agreed to review (“granted cert” in the legal jargon) a case about religious liberty, free speech, and government coercion to support gay marriage. The case involves Jack Phillips, owner of Masterpiece Cakeshop, and whether he must create wedding cakes for same-sex weddings, even if doing so violates his beliefs.
The case goes back to 2012, when a same-sex couple received a marriage license in Massachusetts and asked Phillips to bake a cake for a reception back home in Colorado, a state that in 2006 constitutionally defined marriage as the union of a man and a woman.
Phillips declined to create a wedding cake, citing his faith: “I don’t feel like I should participate in their wedding, and when I do a cake, I feel like I am participating in the ceremony or the event or the celebration that the cake is for,” he said.
The couple later obtained a wedding cake with rainbow-colored filling (illustrating the expressive nature of event cake-baking) from another bakery.
The American Civil Liberties Union filed a complaint against Masterpiece Cakeshop with the state, alleging violations of Colorado’s public accommodation law.
Administrative Law Judge Robert N. Spencer ruled against the bakery on Dec. 6, 2013, concluding that Phillips violated the law by declining service to the couple “because of their sexual orientation.”
Phillips objected to this characterization and responded that he would happily sell the couple his baked goods for any number of occasions, but creating a wedding cake would force him to express something that he does not believe, thereby violating his freedom to run his business in accordance with his faith.
Phillips is right. As Sherif Girgis and I explain in our new book from Oxford University Press, “Debating Religious Liberty and Discrimination,” acting on the belief that marriage is the union of husband and wife does not in itself entail “discriminating” on the basis of sexual orientation. Indeed, part of the problem is that liberals are simply calling anything they disagree with “discrimination.”
This overbroad definition of “discrimination” is part of what creates the problems for the free exercise of religion and free speech. And here a pattern holds: Legally coercing professionals serves no serious need, but works serious harms.
Conservative wedding providers are few and dwindling due to market pressures—and most important, they don’t refuse to serve LGBT patrons. In case after case, bakers have had no problem designing cakes for gay customers for every other occasion. It’s just that an exceedingly small number can’t in good conscience use their talents to help celebrate same-sex weddings by baking a cake topped with two grooms or two brides—or, as in this case, with rainbow filling.
Coercing these cultural dissidents has vanishingly small effects on the supply of products for any given couple, but it impinges seriously on particular vendors’ freedoms of speech, conscience, and religion. If any harm remains in leaving these wedding professionals free, it is only the tension we all face in living with people who disagree with us on the most personal matters.
As Girgis and I explain in our new book, America is in a time of transition. The Supreme Court has redefined marriage, and beliefs about human sexuality are changing. Now, the Supreme Court has the chance to protect the right to dissent and the civil liberties of those who speak and act in accord with what Americans had always previously believed about marriage—that it is the union of husband and wife.
Such a ruling would help achieve civil peace amid disagreement. It would protect pluralism and the rights of all Americans, regardless of what faith they may practice.
ABOUT THE AUTHOR: Ryan T. Anderson/ @RyanTAnd