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David Lat on the Latest Yale Law School Disruption of a Speaker
"As lawyers, we have to put aside our differences and talk to opposing counsel. If you can't talk to your opponents, you can't be an effective advocate."
A superb analysis, at his Original Jurisdiction newsletter. Read the whole thing, but here's an excerpt:
Here's a report from Aaron Sibarium of the Washington Free Beacon:
More than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties, intimidating attendees and causing so much chaos that police were eventually called to escort panelists out of the building.
The March 10 panel, which was hosted by the Yale Federalist Society, featured Monica Miller of the progressive American Humanist Association (AHA) and Kristen Waggoner of the Alliance Defending Freedom (ADF), a conservative nonprofit that promotes religious liberty. Both groups had taken the same side in a 2021 Supreme Court case involving legal remedies for First Amendment violations. The purpose of the panel, a member of the Federalist Society said, was to illustrate that a liberal atheist and a conservative Christian could find common ground on free speech issues.
For additional coverage, see … Eda Aker and Philip Mousavizadeh's article in the Yale Daily News and Robby Soave's post over at Reason.
If you read the Free Beacon's coverage, you get the sense of an out-of-control mob; if you read the YDN's coverage, you get the sense of quiet, non-disruptive protesters, threatened by the presence of police. Based on what I've heard from folks who were there, the truth lies somewhere in between.
The protesters were disruptive at the start of the event, both inside the classroom and after they repaired to the hallway. But unlike the protesters at Hastings, they did calm down (eventually), and they did not succeed in "canceling" the Yale event, which moved forward to completion.
Credit for this should go to Professor Kate Stith, moderator of the Yale FedSoc event, who had the unenviable task of dealing with this fraught situation. As you can see in video footage (via the Free Beacon), after the protesters started getting noisy inside the classroom, claiming that this was their form of "free speech," she reminded them of the school's actual free-speech policies (and told them that they needed to "grow up," for which she was jeered). She informed the protesters that they could either (1) stay in the classroom, remain quiet during the speakers' presentations, and ask questions during the Q&A, or (2) they could leave the classroom and gather in the hallway, as long as they did not disrupt the event….
[H]ere's my big takeaway from the latest YLS controversy: the free-speech problem in our law schools isn't just about administrators, and they can't solve the problem by themselves. The problem goes much deeper and is rooted in the mindset of students ….
The two panelists at the YLS event, Monica Miller and Kristen Waggoner, both expressed disappointment over how the Yale law students comported themselves. As Miller of the AHA—no fan of the ADF, which she noted during the panel has been designated a "hate group" by the Southern Poverty Law Center—told the Free Beacon, "As lawyers, we have to put aside our differences and talk to opposing counsel. If you can't talk to your opponents, you can't be an effective advocate."
Exactly—and I'm not sure how much I can add. As a gay man who is in a same-sex marriage and raising a son with my husband, I strongly disagree with ADF's views on same-sex marriage and parenting. But I strongly defend the right of its leaders to speak and to participate in public events, and I think the treatment that Kristen Waggoner received at YLS was disrespectful and wrong….
One final thought: I can't believe I'm having to write a defense of a free-speech regime in which people listen respectfully to the other side, even when they find the other side's views abhorrent, as opposed to a free-speech regime where "freedom" belongs to whoever can yell the loudest. You would have expected—and hoped—that law students, as future lawyers, would understand the value of the former and the problems with the latter.
When these law students become lawyers, and many of them have to go to court or a negotiating table, they will have to listen to the other side—whether they like it or not, and no matter how "offensive," "triggering," or "violent" they find the views of the other side to be. Shouting down opposing counsel, then claiming that you're just engaging in your own form of "free speech" or "zealous advocacy," will not fly in the world beyond Yale Law School….
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What happened to "speech is violence'?
Were these rioters arrested?
"...police were eventually called to escort panelists out of the building."
Can someone explain why the victims were removed, and not the aggressors?
We need the names of all the students aggressors. They can be brought up at future confirmation hearings.
Excuse me, lawyer dumbasses. At this late date, why are controversial meetings not all held on video? Mute the attendees until Questions are allowed.
Excuse me, lawyer dumbasses. At this late date why is any legal meeting not held on video, including tribunals? Travel time, costs, and risks, Covid super spreading, possibility of personal violence. Too stupid to solve this third grade word arithmetic problem.
The diverses all wore masks, the stigma of the Democrat douche bag.
What they mean is "Your speech is violence, but our violence is speech."
"The problem goes much deeper and is rooted in the mindset of *students*"
One way to cut this Gordian know is to expel the disruptors, so they won't be students any more, at least not at Yale.
But where, oh where, will Yale be able to find young people willing to replace the expelled students? (/sarc)
Gordian knot
Actually the deeper problem is that Yale admitted them in the first place.
reality check: the Yale administration tacitly agrees with these tactics.
Exactly. And this shows us as clear as clear can be that so far from being a champion of free speech, David Lat is a phoney.
[H]ere's my big takeaway from the latest YLS controversy: the free-speech problem in our law schools isn't just about administrators, and they can't solve the problem by themselves.
Except that they can solve the problem by themselves, just as Cal Cetin describes, and as university administrators would automatically have done up to the mid 1960s. And, for all David Lat's faux sighs about courtroom behavior by lawyers, just as judges would happily do now for anyone disrupting their court proceedings. And as Congress would do for anyone disrupting their proceedings.
If university administrators do not expel students who disrupt other people's free speech - after the publication of appropriate policies and warnings - it is because they do not want to, not because they can't.
"university administrators would automatically have done up to the mid 1960s."
Yes, the beginning of the end for US higher education.
Now, the administrators mainly agree with the Red Guards.
The admins are probably the children of Red Diaper babies...
Thank goodness people such as Commenter_XY, who disdains Yale and all of America's strongest schools, have plenty of downscale (fourth tier or unranked) conservative schools that teach nonsense, suppress science to flatter childish superstition, warp history to defend silly dogma, and cling to plenty of right-wing bigotry.
Carry on, clingers. Your betters will, as has become customary in modern America, let you know how far and how long.
The students are diverses. Replace them with Asian students with better grades and some manners.
Expelling disruptive protestors is grossly disproportionate. This is a silly suggestion.
Don't believe me? Check this out:
"10) Disruption of a speech is a very serious offense against the entire University and may appropriately result in suspension or expulsion...." (pp. 34-35)
https://yalecollege.yale.edu/get-know-yale-college/office-dean/reports/report-committee-freedom-expression-yale
This is of course the Woodward Committee report, which is many things but not "silly." Go ahead and describe chairman C. Vann Woodward as "silly," if you want to, you will simply be nipping at the heels of a distinguished academic with *some* familiarity with issues of human rights.
https://www.historians.org/publications-and-directories/perspectives-on-history/march-2000/in-memoriam-c-vann-woodward
(page citations are to a different link, I do beg your pardon, ankle-biter)
You know that policies like that are not generally enforced.
Your invocation of Woordward is cute, but considering the level of disruption by the students is even now disputed, insisting on the maximum sanction contemplated remains more childish tantrum than sober human rights crusade.
Here is a better way:
"The recent Yale Law School dust up reminds me of a similar controversy when I was an undergrad some decades ago and a group invited an official from the Nation of Islam to speak at YLS.
Many students and others were justifiably upset given the speaker's history of anti-semitic remarks. Some even saw the speaker as threatening.
Many students and others were justifiably upset given the speaker's history of anti-semitic remarks. Some even saw the speaker as threatening. To lead by example, Dean Calabresi noted he would join students and others protesting outside before the event, but that when time for the talk came, it was also time to allow the speaker to be fully heard by those who wished to attend. And this meant no small disruptions or interruptions, but respectful listening and (when the time came) pointed, substantive questioning, and that is what occurred."
There's nothing cute or childish about the Woodward report - Yale has traditionally (with some recent unfortunate exceptions) advertised this as their policy. Those who sponsor speeches, and those who attend, are entitled to rely on this report - and potential disruptors have fair warning that they might be kicked out and replaced by people more grateful for a Yale education and more willing to conform to the rules.
"Dean Calabresi noted he would join students and others protesting outside before the event, but that when time for the talk came, it was also time to allow the speaker to be fully heard by those who wished to attend."
That's cute, but what does it have to do with what happened here?
No, what's cute is how you invoke it - saying suspension should be on the board is not the same as suspension as the go-to punishment.
The conclusions we draw, then, are these: even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression. This obligation can and should be enforced by appropriate formal sanctions. If the university's overriding commitment to free expression is to be sustained, secondary social and ethical responsibilities must be left to the informal processes of suasion, example, and argument.
Appropriate sanctions being key here.
You want a scalp, and are ignoring what this report actually says to demand one.
Then let them argue mitigating circumstances after they're convicted.
In response to the facts are disputed, you say fuck the facts, and fuck due process - they are already convicted in Cal's court of his own brain!
You're not here for justice, you're here for blood. And you should be ashamed both for what you want and how you dress it up like human rights.
You like to attend a bunch of scarecrow conventions. So many
I responded to your specific claim: "the level of disruption by the students is even now disputed"
You didn't say "the *existence" of disruption is disputed."
If anyone presumed guilt, it was yourself.
If you now want to walk back your claim and say that "oops, I meant they were innocent," then do so, don't draw into your tired vocabulary of abuse to berate me for taking you at your word.
Though to think of it, maybe I *was* wrong to take the likes of you at your word.
There is some level of disruption that is de minimis. Come on, man.
https://yaledailynews.com/blog/2022/03/15/yale-law-students-protest-anti-lgbtq-speaker-armed-police-presence-triggers-backlash/
Correction, March 15:This article has been updated to include comment from Waggoner, as well as to note that the protesters’ claims that their protest was non-disruptive has been disputed.
Your remark certainly looked like "the amount stolen was disputed," not "they didn't steal anything."
"appropriate formal sanctions"
I suggested some sanctions short of kicking them out, just so long as they comply with the sanctions and turn in the ringleaders.
If an essay on the Woodward Report is like drawing blood...well, you don't seem very reality-based.
It's not the essay, it's you: One way to cut this Gordian know is to expel the disruptors, so they won't be students any more, at least not at Yale.
This remains a ridiculous call for blood where none is warranted.
Oh, and I notice that you said "You know that policies like that are not generally enforced."
That was a funny thing to say about innocent people to whom the policy *doesn't apply at all.*
...Do you know what disputed means?
"even when some members of the university community fail to meet their social and ethical responsibilities, the paramount obligation of the university is to protect their right to free expression."
Thank you for that quote which cuts against your own position.
Did you see how you just mixed up protecting free expression with expelling the disrupters?
Those two things are not the same. That is, in fact, the issue we're having.
That you don't even realize you what you just did is a problem for you.
"expelling the disrupters"
There, you did it again.
How do we know there are any disruptors? That remains to be proven, doesn't it?
"the level of disruption by the students is even now disputed"
Then let them argue mitigating circumstances after they're convicted. Maybe they can ask for a lesser penalty like loss of off-campus privileges and writing a 50-page footnoted essay about the history of the Woodward Report. Also have the turn in the ringleaders so at least *they* can get expelled.
Sarcastro, let's review how your remarks are a textbook example of goalpost-shifting.
Here are some of your greatest hits:
"Expelling disruptive protestors is grossly disproportionate."
"You know that policies like that are not generally enforced."
"the level of disruption by the students is even now disputed"
Now you belatedly flourish the quote from the Yale Daily News: "the protesters’ claims that their protest was non-disruptive has been disputed"
But that's different from what you said at the beginning - that it *was* disruption, only not bad enough to expel.
Also, after you called the punishment "grossly disproportionate," and I replied by citing the Woodward Report's statement that disruption "may appropriately result in suspension or expulsion," you didn't seem to realize that this in itself rebuts your "grossly disproportionate" point. Contrary to your assertion, I know what the word "may" means, but I also know what "appropriately" means, and it's the opposite of "grossly disproportionate."
And you didn't notice that I myself moved the goalposts in response to your initial argument, acknowledging that a lesser punishment may be justified for the silly followers if they turn in the ringleaders. This is because I can modify my position in response to discussion without claiming I didn't.
Belatedly? You mean 11 hours ago? What are you trying to pull here, exactly?
Yes, I can indeed argue both that there needs to be a finding of fact, and that suspension is disproportionate to what they are accused of.
Those are two different arguments, not two different goalposts.
This is not actually hard to parse.
"there needs to be a finding of fact"
"needs"? How would that work if the policy goes unenforced as you suggested? What need would there be for factfinding?
I replied to your comments that the punishment is grossly disproportionate.
"Those are two different arguments, not two different goalposts."
Your Honor, first I intend to show that the so-called victim is in fact alive. Second, I will show that my client was not on the scene at the time of the murder. Third, I will show that my client acted in self-defense.
and yet, Yale law will still graduate these dumbasses. yay for the next generation of idiot lawyers!
Those dumbasses likely will drive cars that cost as much as your house.
Given the pro-Ivy League law school bias, many of these children will end up on high courts, including SCOTUS.
According to Mark Joseph Stern, a senior judge sent out an email suggesting that judges consider this behavior when choosing clerks.
The lefties on the thread are all hopped up on the bullshit "counterspeech" angle.
Be very curious to know how Silberman felt about the Stanford students who tried to stop a classmate from graduating because he made fun of the Federalist Society keeping their prestigious clerkships.
There's hypocrisy all around. (One of the better books on the subject of free speech was Nat Hentoff's "Free Speech for Me But Not for Thee", which basically paints the picture.)
But one way to cut through that is to focus on the merits of cases and not people's hypocrisies. There should be consequences for students who disrupt events like this, whereas students should be encouraged to protest in ways that do not disrupt the event.
That only works if there is a clear pattern of consequences for any misbehavior. If most federal judges don't care that some clerks are sociopaths who tried to derail a classmate's career because they were the butt of a joke, I don't see why other judges (or me personally) should care that some clerks shouted down a speaker.
Because sometimes not doing the right thing is the same as doing the wrong thing. Some choices really are binary. It does suck to take the high road while watching one's opponent speed by on the low road, but the alternative here is an endless cycle of tu quoques, the product of which is a race to the bottom.
What should I do in the face of implacable nihilists like, say, Bob from Ohio? I don't know, but I'd rather lose than become him.
Ouch. But yes, that is a very fair point.
" I don't know, but I'd rather lose than become him. "
Fortunately, the culture war's victors get to stomp the preferences of guys like that into irrelevance in modern America without becoming anything like Bob from Ohio.
I don't know, but AFAIK none of those students prevented anybody from speaking, which is what this judge's concern was.
It was the school, not the students, that put the hold on the other student's diploma.
"It was the school, not the students, that put the hold on the other student's diploma."
Because they asked the school to! They don't get to avoid responsibility for that. The school didn't do it out of the blue.
Those students did something much much worse than these ones: they tried to ruin a classmate's career possibly costing him thousands of dollars for missing the bar and lost income from a late job start. All because he made fun of their club. If they get to be clerks I don't see why these assholes can't. (Also those students were dumb on the law...they thought making fun of the Federalist Society was "defamatory" )
"Because they asked the school to! "
They did? Cite?
But in any event, asking other people to do things is protected speech. Shutting down events is not.
https://www.thefire.org/fire-letter-stanford-university-june-1-2021/
They initiated disciplinary proceedings. They obviously knew they were risking their classmate's graduation and career by doing that.
"But in any event, asking other people to do things is protected speech. Shutting down events is not."
Irrelevant distinction. This is about character and what judges look for in clerks. And if sociopaths who seek to use protected means to destroy a classmate's career over being made fun of get to be clerks without an issue, then people who shout at established figures should be too.
"They initiated disciplinary proceedings. They obviously knew they were risking their classmate's graduation and career by doing that."
So they didn't ask the school to delay the graduation. And it's not obvious that they knew any such thing.
" This is about character and what judges look for in clerks."
It's about avoiding hiring clerks who engage in misconduct, not about punishing law students for protected speech.
Misusing disciplinary proceedings is misconduct. If they did it in a legal proceeding it would be sanctionable.
Also: they didn’t speak up and stop it when it became apparent the university wanted to do that. And I don’t think they ever apologized to their victim. Totally reprehensible behavior on every level.
You should read a bit about 'whataboutism'.
I know what it is, and don't care. It's completely relevant to highlight utter hypocrisy of the people demanding punishment. If the judges can't be fussed about people who engage in much more vile behavior being clerks....then I don't see why I should take them seriously or care when they're up in arms demanding consequences for another transgression.
LawTalkingGuy: I agree with FIRE that the Stanford investigation shouldn't have taken place. But I'm not sure that the students' complaint letter was asking that a hold be placed on the student's diploma; perhaps Stanford students understand that such complaints automatically have that effect, but I'm skeptical about that.
In any event, my first reaction is to cut a good deal of slack to people who accurately describe the facts to the university (or the police or anyone else) and ask the authorities to do something about it, as opposed to people who themselves try to shut a speaker down. It's a private-institution analog to "petitioning the government for redress of grievances" -- which is generally tolerable, I think, even if the government rightly rejects the petition -- that strikes me as generally quite different than actually blocking someone's speech.
One can still fault the petitioners for urging the university to do something it shouldn't do, but at least they're using the proper procedures for raising their grievances: They're approaching the proper authority to impartially decide what speech is proper and what speech is not. Am I mistaken on this?
"But I'm not sure that the students' complaint letter was asking that a hold be placed on the student's diploma; perhaps Stanford students understand that such complaints automatically have that effect, but I'm skeptical about that."
Why? Prosecutors should know that bringing charges might lead to prison time for a defendant even if they would prefer probation. And even if they didn't know it would be a degree/graduation hold explicitly; as law students who were applying for bar admission they should know that school disciplinary proceedings can affect character and fitness. Therefore, it is reasonable to infer that they were trying to derail their classmate's career in some fashion. And indeed, they waited until the back half of the semester to do this: the complaint was filed March 27th. It appeared they were filing it to cause maximum stress before graduation.
"In any event, my first reaction is to cut a good deal of slack to people who accurately describe the facts to the university (or the police or anyone else) and ask the authorities to do something about it, as opposed to people who themselves try to shut a speaker down."
While we are getting into a fact/opinion/legal conclusion debate, I dispute the notion that their characterization of the incident was "accurate." For instance, they say: "Wallace defamed the student group, its officers, Senator Josh Hawley, and Texas Attorney General Ken Paxton." This is clearly inaccurate under existing law, and these are law students proffering this to attack another student through disciplinary proceedings. So no, I think zero slack should be given to future federal clerks who misrepresent the law to harm another student. (And if they truly believed this was defamatory, that calls into question their ability to function as law clerks because their grasp of law is so poor).
I also would be completely unwilling to cut any slack to people who try to use the police to combat perceived slights. Asking for police intervention is asking for the possibility that state violence will be deployed against the accused. If there is no reasonable basis for the report, no slack should be given whatsoever.
"They're approaching the proper authority to impartially decide what speech is proper and what speech is not. Am I mistaken on this?"
You are not mistaken in what procedure they used, but you are using procedural formality to excuse substantively wrong conduct. They set into motion a series of events that jeopardized a fellow student's career (with possible monetary implications) and caused him severe stress in his last year of law school because they couldn't take a joke. They also, to my knowledge, did not withdraw the complaint or speak up when they realized withholding a degree was the contemplated consequence.
If we are to make analogies to the non-academic world, I think this is the better one for the Stanford situation: malicious prosecution.
Prosecutors may know all sorts of things, and be faulted for the prosecutions they bring; complainants might not.
More broadly, I suppose my point here is indeed focused on procedure rather than substance. I may sharply disagree with people who seek to substantively limit speech. But so long as they do it through appeals to the proper authorities, that strikes me as a plausible disagreement on the merits -- whether about what the proper rule should be (perhaps whether some kinds of speakers shouldn't be invited), or what the characterization of the facts should be (for instance, whether a flyer would be reasonably understood as a parody or as real). Not so if the students bypass the authorities, and take matters into their own hands (especially if they do so in violation of school rules).
These are law students though. About to be drafting opinions stating the law for entire circuits. They should know better. They should know their actions have consequences. And again: misusing established procedures for malicious ends is generally frowned upon in the legal world. There was no basis for them to file their complaint in a school governed by a Leonard Law. Filing a defamation compliant based on these facts would be sanctionable.
Plus the consequences here were graver. What if the school went through with it? Wallace was prevented from graduation, his bar exam delayed, his job delayed. Character and fitness questions raised. Thousands of dollars potentially lost (bar exams and prep aren’t cheap, rescheduling would be a nightmare).
This was reprehensible conduct on every level .
I really don't think the third sentence follows from the first.
HA. Nice one.
I suppose it’s more prescriptive than descriptive. Although on the other hand, extreme hypothecating about consequences is an upper level law student calling card, no?
But not all such petitions are equally virtuous, right? I mean, isn't that why we have Anti-SLAPP laws? IMO the Stanford student letter was the private-institution moral analog to a SLAPP suit.
Likewise, not all attempts to shut down a speaker are equally iniquitous. What the Yale students did was obnoxious, but unlike the Hastings students, they did stop eventually, allowing the program to proceed. Worthy of contempt IMO, maybe even sanction, but the scale of the interruption should matter.
On balance I'd call the egregiousness of the Stanford and Yale behaviors a wash. Obviously YMMV.
" In any event, my first reaction is to cut a good deal of slack to people who accurately describe the facts to the university (or the police or anyone else) and ask the authorities to do something about it, as opposed to people who themselves try to shut a speaker down. "
In this circumstance, sure. Switch the schools, or the political leanings of the relevant actors, though, and . . .
I suggest a compromise - each "side" ignores the misconduct of the other side, and leaves it to the public the suffer the consequences.
Did that judge say anything about vestigial bigots who flaunt Federalist Society membership?
Fucking fascists...
If these students ever get out of law school, I'd bet that attorneys they oppose will try to bring up some un-woke stuff during oral arguments to try and set them off.
Some of these students will go on to become judges. They can then rule that "triggered" attorneys do NOT have to listen to opposing counsel's arguments that may upset them in some way. That's what is so scary.
"That's what is so scary."
Yes, many of these these Red Guards will be nominated by Democrats to be judges.
Good. They can balance out the sociopaths the Republicans nominate.
Goddamn you’re sad sometimes. That’s what we want alright, more sociopaths on the bench. As long as they’re YOU’RE sociopaths that is. Go team!!!!!!
I don’t think the pussies at Yale should be tossed out of school, but there needs to be a consequence. There’s no incentive for this garbage to stop without it.
They are ridiculous people of zero substance.
How many people in the modern American mainstream are in the market for pointers on this issue from the type of clinger who adores The Volokh Conspiracy?
Acknowledging freely that the front and center issue here is the conduct of the Yale law students.
People unfamiliar with the ADF can read up on the history that caused the SPLC to list them as a hate group at https://www.splcenter.org/news/2020/04/10/why-alliance-defending-freedom-hate-group. I recommend digging through the links for further reading.
I question the conduct of the law students, and also the decision to invite the ADF instead of an organization, there must be one, which is conservative and dedicated to religious liberty.
Why would I trust a dishonest hate group with classifications of others?
Sorry, I may research the ADF but the SPLC will not be a source. They've discredited themselves too often. Often enough that a designation from them has about the same value as a business' being vouched for by the local Better Business Bureau, and for the same reasons.
Enjoy your disaffected lives at the dwindling fringe of modern and improving America, wingnuts!
Guys, the SPLC has lost Trollificus. Pack it up, it's all over!
They've also lost millions of dollars settling the various defamation suits they've lost, which probably matters a little more.
David Lat has updated his post. It turns out that the truth was not somewhere in between the Free Beacon's coverage and YDN's coverage.
This isn't the canary in the coal mine. This is the fire in the theater. Jordan Peterson explains it perfectly. Google: The Biggest THREAT To Our Society WE MUST FIGHT Against | Jordan Peterson's BRUTAL Speech