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Contempt of Court


This is a followup to this morning’s post on the Stanford Law School/Kyle Duncan controversy.

On Wednesday, SLS’s dean, Jenny Martinez, sent a ten-page letter to everyone at the law school, that made among other things the following points:

(1) Under California law, which applies both federal and California free expression law to private institutions via statute, heckling a duly invited speaker to SLS is not a form of protected expression. It follows that the students who disrupted federal judge Kyle Duncan’s presentation by heckling him could be sanctioned by SLS without violating their First Amendment rights.

(2) SLS’s administration is not going to take explicit positions on controversial issues, as doing so would be incompatible with the administration’s position that “our commitment to diversity and inclusion means that we must protect the expression of all views.” [Emphasis in original]

(3) Dean Martinez reiterates that it was appropriate for both her and Stanford’s president to apologize to Duncan:

The President of the University and I have apologized to Judge Duncan for a very simple reason – to acknowledge that his speech was disrupted in ways that undermined 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. That apology, and the policy it defends, is fully consistent with the First Amendment and the Leonard Law.

There’s no question that heckling Duncan was not legally protected expression, and that therefore there’s no legal barrier to SLS sanctioning the students who heckled him.


(A) This statement doesn’t resolve the question of whether it was right or wrong for the students to heckle Duncan. Civil disobedience consists of violating the law when the lawbreakers believe that a sufficiently compelling reason exists for doing so. For example, Rosa Parks was without question violating the law when she refused to surrender her seat to a white passenger. The students protesting Duncan’s appearance at SLS were doing so because they believe that he and the political movement that has put him on a federal appellate court constitute a clear and present danger to the social and political values they consider most important. I agree with them about that, so the only reason I would criticize their heckling would be on purely pragmatic grounds. The students heckled a man who came to them precisely because he wanted to be “cancelled by the woke mob,” and who chose this extraordinarily mild form of martyrdom in a cold-blooded attempt to further his professional ambitions. In other words, they were trolled, and very successfully, as Dean Martinez’s subsequent letter attests at great length.

But make no mistake about it: All the pearl clutching critics who are excoriating these students would also criticize them if the students had engaged in any substantial protest against Duncan’s appearance, no matter how constitutionally protected that protest might have been. This is because what the people excoriating the students are really objecting to is not heckling per se, but the outburst of lese majeste involved in a bunch of overprivileged hyper-elite law students having the sheer temerity to treat a Noble Eminence of the Federal Courts so shabbily. In other words, when it comes to engaging in any genuine and forceful criticism of Donald Trump’s enablers, it’s axiomatic that the Kids Are Doing It Wrong, no matter how they go about doing it — because the real sin here is a lack of sufficiently servile respect for one’s social superiors.

Basically, Voltaire’s purported aphorism in this context needs to be modified to “I may disapprove of what you say, but I will defend to the death your right to say it [unless you’re speaking in what I consider an insufficiently respectful manner to a really important person].”

The students here were in a largely impossible situation, because what exactly is the right way to “protest” the fact that your institution is more than happy to host and celebrate a powerful tool of authoritarian ethno-nationalist theocrats, who would like nothing better to destroy everything you care about should they get the chance to do so? (Which, given the presence of people like Kyle Duncan at Stanford Law School, may well be quite soon).

It’s all very well to tell students that getting successfully baited by a troll — and again, that is exactly what Duncan was very consciously doing — will only make things worse, but what are the alternatives? Ignoring Duncan altogether, thereby implicitly normalizing him and what he stands for? Protesting in legally protected ways, which will absolutely not insulate them from shrieks about how they’re “cancelling” the Eminent Judge (see above), and will likely come off as pathetically impotent “virtue signaling” to boot? Personally I would have advised these children who you spit on as they try to change their world to employ one of the latter strategies rather than heckling the 5th circuit’s most special snowflake, but it’s not as if these are, under our current increasingly dire circumstances, good strategies — because there are no good strategies in this situation.

(B) Martinez and the university’s president should not have apologized to Duncan, because, whatever valid criticisms might be made of the students’ behavior, Duncan’s own conduct was unambiguously deplorable.

I would pose this question to Dean Martinez: If one of the members of the Stanford faculty had reacted to his or her students in the way Duncan reacted to students’ protests — by for example by saying to one of them “you are an appalling an idiot, you’re an appalling idiot” to her face, in front of her peers, would you offer an apology to that faculty member, no matter how inappropriately the students had protested whatever the faculty member had done or said that triggered the protest? I more than suspect that you would have instead called upon the ancient legal principle, deployed on a regular basis against misbehaving toddlers, that two wrongs don’t make a right, and that faculty member would be very fortunate indeed to get away with not being sanctioned for profoundly unprofessional behavior, rather than getting a fulsome public apology from you. (I say this as someone who was recently sanctioned by my law school’s administration for the profoundly unprofessional behavior of complaining to the administration about being subjected to institutional discrimination).

What’s most discouraging in this situation is the number of centrist and liberal commentators who are essentially taking Duncan’s side in this matter (Our right wing commentators are of course by now far past praying for). Duncan and the rest of Donald Trump’s minions are trying very very hard to destroy liberal democracy in this country, but we’re supposed to go into paroxysms of self-flagellation because a group of understandably enraged and frustrated students violated what are essentially rules of social etiquette (A few minutes of heckling did not in fact prevent Duncan from delivering his prepared remarks; after the heckling subsided he simply chose not to do so).

Again, the reaction from almost everyone to this incident illustrates the extent to which Very Serious People are not, in fact, very serious about Donald Trump’s Republican party and what it represents. Whatever you might say about the Stanford law students’ practical judgment in regard to the protest tactics they chose to employ, they at least are not making that mistake.

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