David Lat on Yale Law Dean's Comments on the March 10 Incident

From his Original Jurisdiction today, an excerpt (though the whole thing is much worth reading):

Here's what the policy—which Dean Gerken never quotes from in her message, oddly enough—actually provides: (1) "a university event, activity, or its regular or essential operations may not be disrupted"; (2) protesters "may not interfere with a speaker's ability to speak or attendees' ability to attend, listen and hear"; and (3) "[s]itting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations" is not permitted.

The March 10 protesters broke all three of these rules. The protesters disrupted not just the FedSoc talk, "a university event," but also the "regular operations" of YLS, including multiple classes and a faculty meeting (which actually was "shut down," since it had to be moved to Zoom). The protesters interfered with both "a speaker's ability to speak," before they left Room 127, and the "attendees' ability to listen and hear," after they repaired to the hallway. Finally, the protesters blocked the main hallway of the Sterling Law Building. There is ample evidence, including audio recordings, video recordings, and eyewitness testimony, to support all of this.

The Yale free-speech policy also offers seven examples of prohibited conduct. The protesters engaged in at least six of them:

• "Holding up signs in a manner that obstructs the view of those attempting to watch an event or speaker, regardless of the message expressed."
• "[S]houting… in a manner that interferes with speakers' ability to be heard and of community members to listen, or disrupts or interferes with classes or other university activities."
• "Standing up in an assembly in a way that obstructs the view of those attempting to watch an event or speaker and/or blocking the aisles or routes of egress."
• "Sitting in or otherwise occupying a building in a way that blocks access or otherwise interferes with university events or operations."
• "Acting in ways that compromise the safety or bodily integrity of oneself or others."
• "Engaging in activities that are illegal or are prohibited in School or College regulations or policies."

The fact that some of the prohibited conduct lasted for only a limited period of time is no defense; a violation occurs after the prohibited act has been committed. And again, there's evidence to support all of this ….

Comments

[DaivdBehar]

This criticism is a waste of breath. The students were diverses, and the rules do not apply. The school or other students needs to publish their names. Others should be warned about how they may act.

[DaivdBehar]

Ivy indoctrinated grads have been highly toxic to our nation. They should be avoided in any policy position. They may be good advisers and researchers.

[Queen Amalthea]

“The students were diverses”

Neuroatypical nutty nonsense.

[DaivdBehar]

Hi, Queenie. What is your preferred pronoun? I want to include it in my letter of support to help you find the job you deserve.

[Queen Amalthea]

My preferred pronoun is “I,” as in “I think you’re a absurd autistic authoritarian.”

[Ed Grinberg]

The students were diverses, and the rules do not apply.

Queenie says this is “nutty nonsense.” I am not so sure.
from Prof. Lat’s post:
A few points. First, I’m curious about where one can find the three-warning protocol, since I can’t find it in the free-expression policy posted on the Yale University website or anywhere on the YLS website. (If anyone reading this happens to have a link to where this protocol can be found online, please email me or post in the comments.)
Second, while I appreciate Dean Gerken’s statement that a successful shutdown of the event (like what happened at UC Hastings) would have triggered discipline, Yale’s free-speech policy doesn’t require an event to be shut down entirely in order for a violation to occur. To the extent that Dean Gerken has created such a requirement, she has revised Yale University policy—and made it much easier for protesters to trample on free speech.

[Rev. Arthur L. Kirkland]

After observing conservatives turn essentially every American campus they control into a speech and conduct code-enforcing, nonsense-teaching, academic freedom-flouting, broadly discriminatory, science-suppressing, superstition-flattering, fourth-tier (or unranked) hayseed farm, I wonder how many mainstream Americans are interested in pointers on this subject from right-wingers.

But not for long. Conservatives have little to nothing valuable to offer to a discussion of this subject.

[dwb68]

“First, what happens at YLS doesn’t stay at YLS; because Yale is a top-ranked law school that produces almost 20 percent of law professors these days, its culture spreads to other law schools, then trickles out into the legal profession as a whole.”

That is the idea… propagate this toxic culture as far as possible.

I fully expect “malicious compliance” by the faculty and admin.

[jimc5499]

These rules were meant to be used against certain people or groups. The group that violated them was one of the protected groups.

[Cal Cetín]

This Lat fellow sounds like one of those “outsiders” against whom the Den was complaining.

[Queen Amalthea]

Was it the Den or the Living Room that was complaining?

[Cal Cetín]

The official statement was coming from inside the house!

[Queen Amalthea]

Seemingly the Den from your report?

[Larvell Blanks]

Trying to imagine her letter if conservative types had pulled the exact same stunt.

[Cal Cetín]

“You may have noticed the absence of some of our conservative students. They have left to pursue other opportunities.

“On another subject, our fundraising campaign to get food for the dogs in the veterinary school has been cancelled. It seems they’ve found a new and abundant source of food.”

[TwelveInchPianist]

“Trying to imagine her letter if conservative types had pulled the exact same stunt.”

If conservative types had pulled the same stunt, she would have written a profuse apology, of course.

[Queen Amalthea]

The best offenses of your political opponents are the ones you imagine, of course!

[Ed Grinberg]

https://reason.com/volokh/2022/03/28/no-qualified-immunity-as-to-firing-of-assistant-principal-for-rant-about-democratic-national-convention/?comments=true#comment-9421908

[Rev. Arthur L. Kirkland]

I expect the development of that litigation to reveal points that make the illiterate, unhinged Randey Thompson (or whatever that illiterate wingnut’s name is) a poor hill for even the most devoted clinger to choose to die on. Avoiding a summary disposition wasn’t much of an achievement or indicator, although it provided Prof. Volokh another opportunity to lather his rubes into a frenzy.

[Shamie Ervin iv]

Hold the feet of the noisy rabble to the fiyah, my brilliant young law professor. Thank you. A hundred times, thank you for this and the post about that Smith cop in the banana republic of Arkansas trying to get a restraining order because he was humiliated on FB for being a snotty little tyrant. 🙂

[jb]

The only substantive disagreement here seems to be: what should the response to a violation of the Free Speech Policy be? Yale seems to be saying “if we warn you to stop and you stop, no big deal”; Lat seems to be saying “if you violate the policy, you should be subject to some discipline”.

While I actually agree with Chemerinsky’s and Gillman’s take about why this sort of protest is problematic, I don’t think it follows that disciplining students for each violation of the policy is required. Lat says he can’t find a link to Yale’s “three warnings” protocol., but so what? He doesn’t attempt to explain why the protocol is problematic, and instead falls back on “what will prevent this from happening again?” But at Yale the event did actually happen! While I think it would be good to encourage the students to be more open to opposing viewpoints, I’m super skeptical that disciplining them is going to help in that direction; more likely, it would lock them into their existing opinions and make them even less interested in engaging. Discipline can change behavior, but not mindset unless you believe in reeducation camps.

[Don Nico]

Jb,
Few commenters make anything about the “Faculty meeting” which was actually a job applicant interview talk.
That it move to Zoom scarcely ameliorates the damage to the candidate that such an interuption and change of venue incurs.

[jb]

“Few commenters make anything about the “Faculty meeting” which was actually a job applicant interview talk.”

I only searched for about a minute, but I can’t find anything to substantiate this. Do you have some sort of citation?

In any case, that’s bad but for a different reason having nothing to do with free speech principles.

[David Nieporent]

He doesn’t attempt to explain why the protocol is problematic,

I find it problematic — practically, not legally — because this isn’t elementary school. “If you violate the rules, we’ll warn you. If you do it again, we’ll… warn you again. If you do it a third time, maybe we’ll take action.”

I’m not sure why they should be entitled to any warning; these are Yale Law students, and should be able to figure out when they’re breaking the rules without the need for an admonishment first. But even assuming they need one, I don’t know why on earth they should get a second one.

[jb]

Well, they didn’t get a second one in this case, so it’s not a particularly interest point of contention.

In any case, warnings of various sorts are common in every avenue of life before disciplinary action is levied. Even if you tried to disrupt the operation of a private business (like say shouting over people trying to order at a McDonald’s) they’d probably ask you to stop before kicking you out, much less calling the cops.

[Commenter_XY]

If Judge Silberman is any guide, I think a number of federal judges have already quietly made some mental notes on what students will not be hired for clerkship roles. Not saying that is right or wrong, but that it is happening as I write.

Considering the venue and importance of YLS to legal academia, I don’t think ‘doing nothing but lamenting’ is really an option here. Judge Silberman evidently feels the same way, and has proposed a way to mete out ‘rough justice’. And it would be rough justice.

Let’s see what happens here, jb. I don’t think this is over yet.

[David Nieporent]

I dunno; I think at most private businesses if you were engaged in a serious organized, pre-planned disruption, it would be “Leave or we’re calling the cops,” not “Please start behaving or we’ll call the cops.” If it were just some person being noisy, then, yeah, they’d probably give a warning.

[Queen Amalthea]

“The fact that some of the prohibited conduct lasted for only a limited period of time is no defense; a violation occurs after the prohibited act has been committed.”

That’s laughable. I mean, if someone stands to walk out to use the bathroom once the speech starts and anyone is sitting behind them they have now broke the rule of “Standing up in an assembly in a way that obstructs the view of those attempting to watch an event or speaker” and according to Lat need harsh punishment. How EV finds this kind of reasoning (or lack thereof) “much worth reading” is fairly incredible.

[TwelveInchPianist]

“I mean, if someone stands to walk out to use the bathroom once the speech starts and anyone is sitting behind them they have now broke the rule of “Standing up in an assembly in a way that obstructs the view of those attempting to watch an event or speaker” and according to Lat…”

1. Lat didn’t write the policy.

2. Do you think that the policy itself is unclear about whether momentarily obstructing speakers while getting up to take a piss is prohibited, or is it possible that Lat excerpted the policy in a way that didn’t cover every nuance?

If you’re confused, he did link to the actual policy.

[jb]

Importantly, the policy does not say that any violation of it must result in some sort of discipline. As with many policies, reminding people of the policy and asking them to comply is a totally reasonable reaction to a violation. Which is exactly what happened.

[Queen Amalthea]

I’m not sure why you feel the need to carry water for Lat but he wrote what wrote. He’s entirely invented this idea that the amount of time doesn’t matter and as a matter of common sense it’s laughable.

[TwelveInchPianist]

“I’m not sure why you feel the need to carry water for Lat but he wrote what wrote.”

It’s because he’s correct and you’re not.

“He’s entirely invented this idea that the amount of time doesn’t matter and as a matter of common sense it’s laughable.”

No he didn’t, he’s responding to the claim, raised by Gerken and others, that there was no policy violation because the entire event wasn’t shut down. The fact that you want to split hairs in an entirely different scale of conduct is what’s laughable.

[Queen Amalthea]

“It’s because he’s correct and you’re not.”

No, he’s wrong, his test is laughable for the reasons I’ve given (taken as he states it it would mean disciplining someone for standing up to stretch, or to go to the bathroom, or even to stand and cheer). You’ve offered no rebuttal other than essentially ‘well maybe Lat missed something in what he excerpted!’ Again, I don’t know why you feel the need to carry his water on his silly statement but I sure don’t.

[Queen Amalthea]

” he’s responding to the claim, raised by Gerken and others, that there was no policy violation because the entire event wasn’t shut down”

Here’s some more obvious water-carrying. That’s not what Lat wrote, what he actually wrote was this: “The fact that some of the prohibited conduct lasted for only a limited period of time is no defense; a violation occurs after the prohibited act has been committed. ”

If you want to carry water for Lat I can see why you’d like to posit that what he said is what you said, about the fact that the entire event wasn’t shut down doesn’t mean there were no violations, instead of what actually said, which was something pretty dumb which would mean all kinds of perfectly innocent (and inevitable!) behavior would be violations.

[jb]

“No he didn’t, he’s responding to the claim, raised by Gerken and others, that there was no policy violation because the entire event wasn’t shut down.”

What? Gerken has never said any such thing. In fact she clearly wrote the exact opposite.

[TwelveInchPianist]

“Had the protestors shut down the event, our course of action would have been straightforward—the offending students without question would have been subject to discipline.”

[jb]

Yes, that explains that they weren’t subject to discipline. That is orthogonal to whether or not it was a policy violation. This isn’t that hard to understand.

Let me give you an analogy: right now it’s required to wear a mask on a plane. If you consistently refuse to wear a mask you can be thrown off the plane and even put on the airline’s no fly list. But if you happen to take off your mask for a minute, a flight attendant is going to ask you to put your mask on and when you do it you and everyone else will continue on your merry way. That’s not because it’s within the rules to take off your mask, but because a reminder of the policy and you putting your mask back on is sufficient to deal with the situation and “discipline” isn’t needed if everyone can otherwise quickly move on from the infraction.

[ReaderY]

While you can doubtless find something over-extreme in what Professor Lat said to nit-pick at, I think it’s true in this case that the totality of what the students did violated the rules, and Dean Gerkin was lenient with them.

And I don’t think nit-picking at some isolated inexact statement one side or the other might have made really changes that. Or helps.

[Queen Amalthea]

It’s not nit picking, the amount of time is quite critical to understanding what should or should not be done under the policy. Lat’s contention that it’s not a factor at all is risible.

[TwelveInchPianist]

Are you claiming that there’s an amount of time that you can hold up a sign that blocks the view of the speaker that doesn’t violate the policy? Because that’s not what the policy says.

[Queen Amalthea]

I most certainly am saying that it’s absurd to think that, for example, holding up a sign for, say, a second to turn your head and see if it is obstructing anyone’s view is a violation. And Lat’s silly test (“that some of the prohibited conduct lasted for only a limited period of time is no defense; a violation occurs after the prohibited act has been committed”) would mean exactly that.

[TwelveInchPianist]

“I most certainly am saying that it’s absurd to think that, for example, holding up a sign for, say, a second to turn your head and see if it is obstructing anyone’s view is a violation.”

Why? That’s what the policy says. You can turn your head before you hold up your sign if you want.

Now, you can certainly argue that de minimus policy violations should be ignored, but nobody is claiming that what the students did here falls into that category.

[ducksalad]

I think both your criticism of Lat, and Lat’s criticism of the dean, are flawed. Between the two of you, you’re ruling out the concept of a warning.

If, as you claim, a limited time disruption isn’t a violation at all, then it would be wrong for an authority figure to come in and tell you to stop. Lat’s implying that once there’s a violation it’s too late for just telling you to stop.

In the real world, the limit of the de minimus exception is when you push it to the point that someone has to tell you to cut it out. You are in violation but if you stop that’s the end of the matter. That’s how the vast majority of cases of obstruction of traffic, excessively loud music, or students acting up in class are handled. And that’s a good thing.

[Don Nico]

So how much time was it?
Time to walk to the head or 10x or 100 x that time. We do know that it was long enough to interrupt someone job interview talk.

[David Nieporent]

“Professor” Lat?

[Kleppe]

“[…] and according to Lat need harsh punishment.”

I’ll settle for any kind of consequence whatsoever, because that is more than almost any leftists ever have to experience following blatant rule-breaking.

[Alpheus W Drinkwater]

This boils down to the difference between a law professor on the outside who can write theoretically about rule breaking, and a dean who has to deal with students and situations in reality. I’m not saying Lat is right or wrong, but maybe he isn’t fully aware of everything Dean Gerken has to consider.

[ReaderY]

I am now going to make an explicit comparison to the lynch mobs of the early 20th century.

You cannot lock everybody up. You cannot expel everybody. You cannot execute everybody. So when a large enough minority does something, the fact that it’s flatly illegal and there’s a black-and-white definition on the books that clearly says so can no longer be the sole guide to ones actions.

A leader may have to do something else. Simply tounding ‘em all up and locking ‘em up doesnmt work when half the would-be rounders and lockers have also done it.

[LawTalkingGuy]

“I am now going to make an explicit comparison to the lynch mobs of the early 20th century.”

Sam Holt had his knuckles sold in shops as souvenirs. Sooo maybe don’t compare this to some of the most depraved acts in American history?

[LawTalkingGuy]

**Sam Hose

[Lee Moore]

You cannot lock everybody up. You cannot expel everybody. You cannot execute everybody. So when a large enough minority does something, the fact that it’s flatly illegal and there’s a black-and-white definition on the books that clearly says so can no longer be the sole guide to ones actions.

One of these things – the thing in bold – is not like the others.

With lynch mobs, it may be that subjecting every member of the lynch mob to the prosecutorial and judicial process is impractical – maybe you can’t identify all the perps, or prove all your cases beyond a reasonable doubt. Or it may not. Depends on the circumstances. Moreover with actual executions, it is typically felt that a few hangings – of the ringleaders – is probably enough to deter repetitions.

But for Yale, blessed with a giant endowment fund, enabling it to do without the fees of any law students for decades, never mind a year or two; which also has many more qualified applicants than positions to offer; expelling everyone guilty of disrupting an event contrary to stated Yale policy isn’t impossible. It’s easy.

The lecture classes would rapidy refill with next year’s intake (plus those of the current student body who were not involved in rule-breaking disruption) and all would proceed with their studies, happy in the knowledge that Yale was, in deed as well as word, committed to peaceful and undistrupted education.

Expelling fifty or a hundred students is as nothing compared to say The Great and Poweful Ronald firing 11,000 air traffic controllers. Which worked just fine.

[Sarcastr0]

Expelling fifty or a hundred students

See, this is fucking nuts. Scalp-taking, not an actual solution to a problem.

This kind of radicalism just cuts you out of the debate.

[Absaroka]

“not an actual solution to a problem.”

How so? Suppose a college thinks it has a widespread cheating problem. It catches 50 or 100 flagrant cheaters, and expels them.

ISTM that will help solve the cheating problem, both because those individuals will no longer be part of the cheating problem at that particular college, and also because it may deter future potential cheaters.

Granting up front that I am ‘fucking nuts’, can you explain to someone from Alpha Centauri why that doesn’t help solve the cheating problem?

“just cuts you out of the debate”

I regret to inform you that cutting people out of the debate is not a power you currently possess.

[Lee Moore]

I regret to inform you that cutting people out of the debate is not a power you currently possess.

You don’t know that.

Maybe he works for Google, Facebook or Twitter.

[Lee Moore]

Leaving aside the allegation of my alleged nuttiness, let’s focus on the question of whether it is or not an actual solution to a problem.

Is there anything about this solution that is impractical ? if so, what ? What makes it impossible to implement ?

And what leads you to doubt its effectiveness in solving the problem – that being the disruption of either invited events, or classes, by students who are sufficiently excitable that not only do they not want to hear certain opinions themselves, but who also wish to prevent other people, who do want to hear them, from hearing them ?

In the absence of any reasonable objection to the practicality of this solution, or to the likelihood of its effectiveness, and in the presence merely of insuts, we must presume that you – like the Dean – do not have any serious practical objection. You simply do not regard the problem as sufficiently important to be worth solving, if the cost is any serious disruption of the protesting students’ academic careers. Or even trivial disruption thereof.

To help open your eyes, therefore, let us slightly change the facts. Let us suppose that a group of conservatively minded law students at Yale (OK – we can imagine such a thing, just as we can imagine unicorns) decided to disrupt classes in the same way that the lefty students disrupted this event. (And as countless bands of lefty students have disrupted countless events round the country.) So that each class began with a few minutes hecking of the Professor, and continued with loud shouting and banging in the hall outside, after a pouty walkout.

How long would it take you – and the Dean – to conclude that in THIS case, expelling the disruptive students was a practical solution and well worth the cost to those students academic careers ?

About a minute.

[Ed Grinberg]

I appreciate Dean Gerken’s acknowledgment that YLS “allow[s] people to speak even when their speech is flatly inconsistent with our core values.” But note that the FedSoc event in question had nothing to do with ADF’s stances on LGBTQ rights, which came up only when protesters raised them during the Q&A period.
Instead, the event was about Uzuegbunam v. Preczewski, a Supreme Court case addressing damages and standing in the free-speech context. It featured two speakers at opposite ends of the ideological spectrum, Monica Miller of the American Humanist Association and Kristen Waggoner of the ADF, who came together to work on Uzuegbunam—and won an 8-1 victory at SCOTUS. So the speech engaged in by the panelists that day, far from being “flatly inconsistent with [YLS’s] core values,” was supportive of those values, insofar as one of those values is free speech.

No, no, no! A person is either all-good or all-bad; there’s no in-between. By having once engaged in bad-think, you’re thereby forever branded as a bad-thinker, and anything you have to say can be ignored. (In fact, all good-thinkers are morally obligated to prevent you from saying anything ever again!)
This is what passes for “liberalism” these days…

[Rev. Arthur L. Kirkland]

Other (mainstream) sources are questioning> the right-wing feeding frenzy (‘dont let the facts get in the way of a whiny narrative’; ‘mostly fake news’) in this context, but the clingerverse (Volokh Conspiracy, Lat, Bari Weiss, Judge Silberman, and, we should expect, Instapundit, FreeRepublic, Red State, Fox News, Federalist Society, etc.) is still lathering furiously.

Carry on, clingers.

[TwelveInchPianist]

Yeah, but it turns out that the clingerverse has facts and evidence to support its version events, and your “mainstream” sources don’t.

I know you’d like to accept the MJS/Joe Patrice view as an article of faith, but that’s just not how rational people behave, Arthur.

[Rev. Arthur L. Kirkland]

Prof. Volokh knows precisely which buttons to push with bigoted wingnuts such as TwelveInchPianist — and seems to relish the pushing.

Which is part of the reason UCLA likely regrets hiring Prof. Volokh.

[TwelveInchPianist]

“Which is part of the reason UCLA likely regrets hiring Prof. Volokh.”

You think? Tell me more about the delicious tears of some of the UCLA faculty/admin.

[Rev. Arthur L. Kirkland]

You figure the leadership at UCLA’s law school likes what the Volokh Conspiracy has become, or enjoys apologizing for the misconduct of a faculty member?

[David Nieporent]

Which is part of the reason UCLA likely regrets hiring Prof. Volokh.

Um, he’s not the one who’s so ashamed of what he’s saying — or so fearful of employer reaction — that he’s hiding behind a pseudonym. (Don’t get me wrong: you’re right to do so.)

[Rev. Arthur L. Kirkland]

Prof. Volokh — with a number of other Conspirators — knows precisely who I am.

And I have never censored Prof. Volokh.

What causes you to suggest I am ashamed of calling a racist a racist, or a superstitious gay-basher a superstitious gay-basher; of directing attention to right-wing hypocrisy and paltry ankle-nipping; or mocking half-educated misogynists and faux libertarian xenophobes?

[David Nieporent]

What causes you to suggest I am ashamed

I mean, I pre-answered that question: the fact that you won’t stand behind those remarks under your own name.

[Rev. Arthur L. Kirkland]

I do not wish to be harassed by a collection of disaffected, antisocial, poorly educated, racist, bigoted, obsolete gun nuts and downscale, superstitious, misogynistic, xenophobic, autistic, gay-bashing, anti-abortion kooks.

[Cal Cetín]

Tell me which statements by the Dean of the Yale Law School are exaggerated:

“This behavior was unacceptable; at a minimum it violated the norms of this Law School.”

“I want to state unequivocally that this cannot happen again”

“The deeper issues embedded in this event are not unique to Yale Law School — they plague our democracy and institutions across the country.”

https://law.yale.edu/yls-today/news/message-dean-gerken-march-10-protest

Yes, it certainly sounds like fake news to me. *And the Dean is in on it!*

[Cal Cetín]

“(mainstream) sources”

The first source you cite says that an organization which holds the same position which Yale formerly held on marriage is like a cartoon supervillain who killed a third of the population of the universe.

(Yale ran married student housing when marriage was defined as the union of a man and a woman – can anything be more fascistic?)

[Bob from Ohio]

In good news about Yale

“Former School of Medicine administrator pleads guilty to stealing $40 million from the University
Jamie Petrone-Codrington admitted to stealing $40 million in computer and electronic hardware from Yale School of Medicine.
Hannah Qu 10:31 pm, Mar 28, 2022”

[Don Nico]

Bob,
It’s all “for God, for country, and for Yale.”
Boola, boola

[Stephen Lathrop]

For my entire adult life, since pro-Vietnam war speakers began coming to campus in 1965, I have struggled with strong feelings on both sides of this question. At the time, it seemed important to hear the views of national administration officials—who after all were running the war—and I supported hearing from them. It also seemed notable that no speakers of like stature showed up to speak otherwise (that was a change which came later).

As pro-Vietnam War speakers came one after another, some began to get heckled. It was the only sign of contrary expression on campus, and it was typically feeble. I felt keenly that lack of commensurate opposition, so I inwardly supported the hecklers too. I found myself in support of both sides, and confused about it.

I discussed the problem with senior faculty I knew. They pronounced themselves as baffled as I was about what to think, and what to do.

They were academic professionals. If they had political views, they tended not to share them with the likes of me. I remain convinced they were genuinely concerned, genuinely uncertain, did not like the one-sidedness of what was happening, and at a loss to propose anything different.

I do not think I am over that uncertainty yet myself. It seems an unsolvable problem, to which I wish I had an answer.

But by the time we were deep into the Vietnam War, I had become convinced that by some principle I could not frame precisely hecklers ought to be accorded free speech presumptions to match those of anyone else present. Arguments about severe punishments for disruptors were on display then too; it could not have been clearer as a practical matter that such punishments would suppress opposition—not always for political reasons, though, but sometimes just in support of a quaint institutional politics—which favored orderly process above dissent presented by disorderly means. That tendency remains, of course. I sometimes express a prejudice in favor that tendency myself—in favor of latitude in the governance of purposeful institutions, public and private.

But during the press of war events and on-campus advocacy, I decided that there was too much danger that institutional norms might prove as forcefully conservative about change and contrary advocacy as any government policy. That reflection encouraged a kind of radical view about the right to assembly—positing that at an assembly open to the public, an expectation ought to be that all participants can be heard alike. If a speaker arrives with the advantages of stature, a stage, and a promoted presence, it seems incongruous to demand also that he enjoy the force of law or policy to suppress everyone else.

I began to think: Let the speaker prevail by the advantages he arrives with, plus by his logos, by his ethos, by his pathos. And if those prove insufficient even to control attention, let him retire to think about why. Perhaps he will look inward; perhaps he will conclude, maybe accurately, that he merely chose the wrong audience.

The first questions I would ask, would be, “Did you suppose you had been offered an opportunity to impose your views on an audience by force, by law, or by policy? Does experience of being unable to do that suggest anything you ought to consider—especially about the nature of the relationship between a speaker and an audience the speaker expects to command, instead of to persuade?”

[Cal Cetín]

Very thoughtful.

Let us suppose a university somewhat different from yours…where instead of speakers being skewed toward Vietnam War supporters there were a lot of activists from inside and outside, quite willing to speak against “America’s imperialistic, genocidal, etc. war against the indigenous etc.”

Then assume that some loud-voiced American Legionnaires, hardhats, whatever, liked coming to those speeches and heckling the speaker…to the extent the the speaker retires to think about why.

Acceptable?

[Stephen Lathrop]

CC, if you have a speaker committed to persuading an audience instead of commanding one, why wouldn’t it be acceptable? Better than acceptable—a great opportunity to turn opposition around.

Maybe if an anti-war speaker can’t get the message across, he does retire to ask himself how he could have been more persuasive—how to meet the audience where they are—how to figure out and credit key points among the opposition. If your speaker is doing a good job with that approach, and it still doesn’t work, maybe it is the wrong audience.

[VinniUSMC]

I began to think: Let the speaker prevail by the advantages he arrives with, plus by his logos, by his ethos, by his pathos. And if those prove insufficient even to control attention, let him retire to think about why. Perhaps he will look inward; perhaps he will conclude, maybe accurately, that he merely chose the wrong audience.

If you began to think, you might not have posted this. “It’s the speaker’s fault!” Shouldn’t have been wearing that skirt I guess.

[David Nieporent]

What you fail to grasp is that the essence of the heckling we’re discussing is not presenting a dissenting view. It’s preventing people who want to hear the speaker from being able to do so.

Maybe in newspaper terms you’ll understand better: this isn’t putting out a competing publication. This is stealing all the copies of the newspaper containing the reporting one doesn’t like.

[Stephen Lathrop]

Nieporent, you under-describe the motives which initiate so many of these campus speaking dust-ups. The events which trouble me are planned to be performative, not persuasive.

There is more intended than just hearing the speaker. There is displaying the speaker. There is using the speaker to affront. There is ambition to make opposing views sit quiet during programmed provocations. There is demonstration that the speaker enjoys power to violate norms with impunity—and to do so to the detriment of some in the audience. There is embarrassment of the administration, to show it powerless to protect classes of people the speaker targets for public humiliation. Most of all, there is ideological insistence, without dialogue, in forums founded to encourage dialogue. In short, there is insistent, aggressive culture war.

As you can see on this blog, that insistence comes spouting demands for obeisant reception. It threatens penalties. None of that promotes peaceability, let alone communication. By its style, advocacy of that sort is misplaced in academia.

More persuasive speakers would not need to demand so much. They would invite less trouble. They would communicate more.

[David Nieporent]

There is using the speaker to affront. There is ambition to make opposing views sit quiet during programmed provocations. There is demonstration that the speaker enjoys power to violate norms with impunity—and to do so to the detriment of some in the audience. There is embarrassment of the administration, to show it powerless to protect classes of people the speaker targets for public humiliation.

Were you under the impression we were discussing situations in which students were somehow compelled to attend these presentations? Because we’re not. And in any other context, none of those things apply.

[DewbieDewbieDoo]

“And in any other context, none of those things apply” –

They don’t apply at all. It’s like he’s making things up. This was a talk about the course of a supreme court case litigated (together) by two women on opposite ends ideologically. But the talk wasn’t about their ideological differences – it concerned Uzuegbunam v. Preczewski, and interesting case on when standing remains after an organization abandons the constitution-offending policy (in this case, infringement on college student free speech).

While there may be some speakers in some cases invited to “affront”, that’s not the case here and Lathrop seems to be doing nothing more than kicking up irrelevancies.

[DewbieDewbieDoo]

One of the commenters on Lat’s piece, apparently in earnest, writes that Lat should reconsider his support of speech for groups like ADF because they want to sterilize the transgenders and prohibit the Jews from adopting children.

Can we get an eyeroll emoji?

Just after VK implements an edit feature for posts, of course.