Who's Safeguarding Speech at Stanford Law?

with David Sacks and Spencer Segal

As some of you may know, earlier this month, student protesters at Stanford Law School disrupted an event featuring Federal Judge Kyle Duncan, a Christian conservative who was invited to campus by the school’s Federalist Society student chapter. The protesters shouted insults and vulgarities as he tried to speak, preventing Judge Duncan from making it all the way through his remarks and disallowing others in attendance from hearing what he had to say.

It would be bad enough if only student protesters disrupted the event, but in this instance they were abetted by a member of the law school’s administration, Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach. Dean Steinbach appeared to grant these actions institutional approval, when she should have called out both the violation of the school’s speech codes and the undermining of a basic right that law students should be learning how to safeguard.

In this excerpt from a longer conversation, Stanford Law School students David Sacks and Spencer Segal describe what they saw at the Judge Duncan event. Fortunately, Stanford Law School Dean Jenny Martinez subsequently issued a very strong defense of free speech and an apology to Judge Duncan. That was the right thing to do. But the fact that it was necessary at all demonstrates just how tenuous our grip on the basic principle of free speech is becoming. If those responsible for guiding the education and values of future lawyers, judges, and elected officials can’t stand up for the principles that law schools are meant to perpetuate, they should find another line of work. And if our institutions abdicate their responsibility to defend that most important right, none of our other rights will be worth much at all.

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GLENN LOURY: We're here to talk about what everybody is talking about, Stanford Law. Now, a while ago there was an incident at Yale Law School where a Federalist Society event was interrupted or disrupted or something, and I thought that was an anomaly. I said top-line law school, these cancel culture, deplatforming things going on. That's not supposed to happen at a law school. 

Now apparently with the disruption of the event that the Stanford Federalist sponsored in which federal judge Kyle Duncan was not, in effect, allowed to present his speech, we are back to square one, it seems, on this issue of free speech in law schools. But I don't wanna prejudice the conversation, and you guys are firsthand. Now, I take it that you're both members, openly members, of the Federalist Society community at the Stanford Law School. Do I get that right? 

SPENCER SEGAL: Yeah. 

DAVID SACKS: Yes.

Okay. So let me just ask David. What happened out there, and can you just give us a reprise on the events?

DAVID SACKS: So our society invited Kyle Duncan, a federal judge from the Fifth Circuit to speak on, I think it was guns and Covid in particular, and social media. And the Fifth Circuit is a particularly interesting circuit. Some call it one of the most conservative circuits. And I think we all were interested in what he might have to say on those topics.

But a few days before the event, I think, these flyers started circulating. “Kyle Duncan, FedSoc, you should be ashamed,” including posters that actually revealed the names and faces of our executive board. And they were posted around the courtyard, around the law school, and basically it seemed like something was going to happen.

Spencer and I have slightly different experiences with the lead-up to the event. Spencer went to the event. Although the protestors—there was a big protest outside the event—they had already lined up. I witnessed some of the protests and walked in with Dean Steinbach. And then the event took place. And essentially what happened at the event was there was about ten minutes of Tim, our president, giving a speech, and then the judge was beginning to give us prepared remarks. He was basically heckled at every sentence with a mix of snarky comments about his judgeship and also comments that really didn't have anything to do with his judgeship. Eventually the event devolved into a somewhat heated exchange, I think is a mild way of putting it, between the judge and some of the protestors.

I should also mention that the room was packed. The FedSoc members and also members who just in general wanted to listen to the event were outnumbered considerably. Many people went peacefully. They just held up signs or they just listened and asked pointed questions in the Q&A. But there were some who heckled and disrupted the event. I think that's a start. 

Go ahead, Spencer, you wanna add to that? 

SPENCER SEGAL: I think David covered it. I think the opening, which I can speak for myself and say it was very disappointing to see so many of our classmates basically trying to shout down a federal judge instead of hearing what he had to say.

But that, that wasn't even the most troubling part of what happened. Like David said, it was about 10 to 15 minutes in when it was clear the judge wasn't going to be able to give his remarks. And at that point, he asked for help from the administrator, and that's when Dean Steinbach, the associate dean at the law school for diversity equity, and inclusion, stepped up to the podium. She took the podium from Judge Duncan, and then she proceeded to agree with the protestors, to attack Judge Duncan's record, say that his judgments had landed as a total disenfranchisement of the rights of the people in the room, and that he should be listening and learning from them.

And then she asked the now famous question, “Is the juice worth the squeeze?” And essentially she said in one breath, “Look, I believe in freedom of speech,” but in the next one, “But maybe when speech causes this much division, we have to ask if it's really worth the squeeze.” And it was at that moment that I realized, wow, this is gonna be a real problem, when the person who's been tasked with actually ensuring that we have a space where free speech and discussion can happen is stepping in, not only taking aside, but basically trying to get the judge to leave. 

She spoke for about six minutes. She took about six minutes of our event time, perhaps longer. And then at that point, the judge was allowed to take the podium again at his own event that we were sponsoring. About half of the protestors left, but the rest stayed. And then there was a fairly contentious question and answer period.

To David's point, in fairness, there were several of our classmates who were there protesting who I thought acted well within the boundaries of what's appropriate: They held signs, they asked difficult questions. But there were also a lot of people who I think went well outside the bounds of not just decorum and high-minded ideals of politeness and civility but violated the rules of the actual university's speech code and who insisted on interrupting, who insisted on shouting over answers that they didn't like. The rest of the event was this shouting match back and forth. Judge Duncan was heated by this point, and so really it just devolved into a shouting match. And in the end, the judge ended the event when it was clear there was going to be no more rational discussion that was gonna happen. 

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Let me interrupt just for a minute. I'll just say while I have you here, Spencer, I saw the video of Dean of Diversity, Equity, and Inclusion Steinbach's response. She had prepared remarks. She was reading prepared remarks, man. That blew my mind. That blew my mind. 

SPENCER SEGAL: The worst part to me was that Judge Duncan, when she comes up, she had not introduced herself to him prior to the event. She comes up to the podium when he asks for help, and he says, “Alright, can we talk?” And she says, “No, I want to talk to the room.” And he says, “Why? I wanna just talk to a dean.” She's like, “Yes, I'm a dean. Let's talk together.” People are yelling at Judge Duncan, “Let her speak!” They already apparently knew she was going to speak. “Let her speak, let her speak!”

And then at that point, she takes out remarks, and he's like, “Really? You're gonna talk?” And she said “Yes. Because you asked, I'm going to answer your question.” Then she starts reading from this typed-up page of remarks that she had prepared beforehand. The whole thing I think was, in the judge's words, it was a setup. It sure looked like it.

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One other thing I want to bring up. The estimable Judge Kyle Duncan lost his cool a little bit, didn't he?

DAVID SACKS: Yes.

He got pissed off, and he let everybody in the room know that he was pissed off. Do you think that, with respect to him, was a mistake? 

SPENCER SEGAL: I could speak on this. I have a lot of respect for Judge Duncan, but I'll be frank. I think it would've been better for us if he hadn't. Because it would've made the point clearer. But I'll say this: I think multiple things could be true at the same time, which is that when Judge Duncan got angry, that probably wasn't the best reaction. But also he was provoked by blatant violations of the policy that would've allowed him to give his speech. Frankly, I'm not going to judge the judge too harshly or, I hope this came across, even the protestors too harshly, because they were led astray by someone in a position of authority. 

The whataboutism has just been astounding. There are entire articles where the headline is, “Federal Judge Berates Stanford Law School Students,” and that's all they talk about. And then there are other articles that say, “Protestors Yell Down the Judge,” and then other articles that just talk about Dean Steinbach. But very few articles bring them all together. I think that's the issue. You can acknowledge that all of these things happened.

But what makes this different than Yale's issue is that an administrator stepped in, and it was a federal judge. That's what I think we should be talking about, is the fact that the law school itself stepped in and condoned the heckler's veto. That's what makes this so remarkable. Unfortunately, we know that students will protest and that sometimes they'll cross the line. What makes this different is that the administrator not only stayed silent but then got up to encourage it. 

David Sacks: I would just add, I agree. I think it's well-put. I think it's rich for anybody to truly put themselves in the situation of the judge and say, oh, I absolutely would've reacted calmly, I would've addressed it perfectly. It was pretty bad. We were in the audience together, Spencer and I, and so we didn't see the whole thing, but the room was packed. There were signs everywhere. Some of the signs were totally legit. And some of them had serious vulgarity that I think, especially for somebody of the Christian faith, it would be upsetting.

He could see, I think I'm quoting-ish, "the utter contempt" that they had for him. When somebody feels contempt, they either slink away or they fight back. And Judge Duncan chose to fight back. Would I have reacted the same way? Again, I think it would be rich for me to say, “Oh yeah, absolutely not.” Yes, he did punch back. I think it wasn't great for us. But I understand where he is coming from and it is very important to note that like he was really egged on. I think it took everybody by surprise a little bit. 

SPENCER SEGAL: I assume this is a family friendly show, so we can't really do this. But I think just to give some context of the weight of what was said—

We have used the F-word on this show before. You don't have to use it, Spencer, but it has been used on this show. 

SPENCER SEGAL: That's comforting. It's a Sunday. I don't know. I'm trying to stay clean here. No, it was remarkable, the degree of the vulgarity that was used. There was a whole sign and a shouted question about Judge Duncan's inability to find a certain female sexual organ that was shouted very loudly. There was a lot of discussion of the judge's sexual impotence. And then something that Judge Duncan explained in his op-ed—I didn't hear this because I wasn't there when he walked in—but apparently he said that someone yelled at him and said, direct quote, “We hope your daughters get raped.”

I saw that. 

SPENCER SEGAL: So I think that it's important to understand the level of ... I mean, it's not even contempt at that point. The invective that's being hurled at him at that moment. 

Let me offer this for your consideration. If a comparable event organized on the left were to have taken place, and a first-year law student was photographed in the audience holding up a sign for a gay rights advocate saying, “F you” or “You're a child molester” or something like that, that person would not be employable in any respectable law firm forever. That would follow them to their grave. It would be like appearing in blackface somewhere.

Why not similar career consequences for people who violate norms of decency and respectability such as what you've just described? I can say, as an economist, the incentives induced by such a social practice would keep people from behaving like that.

SPENCER SEGAL: I think that's exactly right. I think that there should be consequences. I think that there should be a high expectation, and not just an expectation, but a high standard of conduct on the part of the university and the legal profession, generally. To even extend your counterfactual, if a liberal judge or a gay rights activist came, how inappropriate it would be for us to protest that way and the kind of consequences we would face: If I said some of the things that were said just to a female classmate, that would be sexual harassment. Because it was. That's what happened at Stanford Law School, is a federal judge came and, in protest, the students sexually harassed him by shouting sexual vulgarities at him, about him, his wife, and his daughters.

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