The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The "Denominator" Problem At Stanford Law School

At what point does a permissible protest turn into unlawful heckling?


I am now teaching the Takings unit of Property Law. In this somewhat incoherent body of caselaw, the Supreme Court often grapples with a recurring theme: what is the relevant denominator. In other words, when the government regulates a person's property, should the court consider (i) only the part of the property that is being regulated or (ii) the "parcel as a whole," including the parts of the property that are not being regulated. If you follow the first path, then ~100% of the person's relevant property interest is being regulated, and there is almost certainly a taking. If you follow the second path, then a smaller percentage of the person's property interest is being regulated, and there is likely no taking.

In 2018, as many will recall, I was protested at the CUNY Law School in New York. Depending how you count, my speech was disrupted for the first eight minutes or so. During that chaotic period, I was not able to speak. At around the eight-minute mark, the protestors departed. After that point, I was no longer heckled. I decided not to give my prepared speech, but rather sought to do Q&A. Even after the incident, I remained conflicted on whether my speech was disrupted. Indeed, I turned to (of all things) takings law to help address that issue. What was the relevant denominator? Was it the eight-minute segment that was entirely disrupted? Or was it the planned hour-long speech, of which about eight minutes was disrupted? I discussed this issue at some length in the First Amendment Law Review, starting at Page 46. Specifically, I explain that the "parcel as a whole" framework may work for a concrete property interest, but is a poor fit for a dynamic protest in which the outcome is uncertain:

But the "parcel as a whole" test is a very poor fit for free speech jurisprudence. This property-centric approach presumes stability while campus protests are volatile. In Penn Coal, the parties understood exactly how much land could not be mined. And in Penn Central, the parties knew exactly how much of the train station could still be utilized. That model works for metes and bounds. It doesn't work for a real-time discourse. Hindsight is always 20/20. When the event began, I had no idea how long the disruption would last. For all I knew, the students could have made noise nonstop. Why did the students at CUNY not protest me for the full hour? I take some credit. Rather than trying to deliver my lecture as planned, or shout over the students, I tried to engage them. I asked them questions to try to forge a common ground. That strategy defused the situation. But it could have backfired. The students could have shouted at me for the entire hour—or worse, continuously clanked a cowbell! The event also could have turned violent. Even after the students exited, I had a concern they would return at some point.

I think a similar dynamic was at play at Stanford Law School. The students heckled Judge Duncan during the first portion of the event. Dean Steinbach came to the podium and proceeded to criticize Judge Duncan. After Steinbach gave her spiel, many of the protestors left. Judge Duncan tried to answer questions for some time, but was unable to deliver his original speech. How do we measure whether there is a disruption? The New York Times interviewed Nadine Strossen about this issue:

Holding vulgar signs or asking pointed questions or even making gagging noises — as many students did when Judge Duncan was introduced — does not necessarily violate the university's policy.

In her memo, Dean Martinez said she would not take action against individual students, citing the difficulty of distinguishing between protected speech and unprotected speech.

"Are 10 minutes of shouting out of an hour-and-a-half-long event too much?" said Ms. Strossen, the free-speech crusader. "That is a matter of judgment and degree."

If you get the balance wrong, Ms. Strossen said, then you risk chilling speech on the other side.

I don't know that it is fair to use the 10-minute mark with the benefit of hindsight. In an ideal world, shortly after Duncan started, an administrator not named Steinbach should have issued a firm warning. If anyone continued to heckle after that warning, the student should be deemed to have violated the policy. The "denominator" cannot be that the planned event that was never allowed to transpire.

The Times also offers some new information that puts Dean Steinbach in a somewhat more favorable light. In particular, Tim Rosenberger, the FedSoc chapter President offers some praise of Steinbach.

To begin with, Ms. Steinbach had a cordial, productive relationship with the leader of the student-run Federalist Society, Tim Rosenberger Jr. Ms. Steinbach, who started at Stanford in 2021, said she wanted to expand the role of D.E.I. to include groups like veterans, older students and conservatives. She viewed herself as a bridge builder. Mr. Rosenberger, for his part, said he wanted a Federalist Society chapter that was better integrated into the university and had found that she was willing to engage in ways that many students, professors and administrators, to Mr. Rosenberger's disappointment, would not.

Moreover, Steinbach helped to moderate a FedSoc event with that right-wing ideologue Nadine Strossen:

In January, when Mr. Rosenberger could not find a co-sponsor for an event with Nadine Strossen, a former head of the American Civil Liberties Union and a champion of free speech, he found a partner in Ms. Steinbach, who moderated the event. "That took some courage," he said. Ms. Strossen said she had spoken to many Federalist Society chapters in recent years and had noticed that, especially since the Jan. 6 attack on the Capitol, the group had become effectively "blacklisted" at many law schools. This backdrop, Ms. Strossen said, made Ms. Steinbach's enthusiastic participation in the event "extraordinary."

What the hell does it say about Stanford that no one would speak with the former head of the ACLU? Nadine is a national treasure. How sad. Props to Steinbach for behaving cordially with the "right" kind of FedSoc guest. Judge Duncan, however, would receive a very different treatment.

Next, the Times turns to Steinbach's role on the day of Judge Duncan's visit. First, we learn that Dean Martinez had approved the email Steinbach sent out:

On the morning of Judge Duncan's talk, Ms. Steinbach sent an email to the entire law school, approved by Dean Martinez. She summarized the concerns that students had with Judge Duncan but said that students who tried to stop speech "would only amplify it," and she linked to the free-speech policy. Ms. Steinbach's connection to students might have made her confident that she could be the broker between the two sides. But during a free-speech conflagration, who should play the role of enforcer? And how should that message be delivered?

I had long suspected that Steinbach at least thought she had the backing of the administration. This datapoint provides more support. Dean Martinez may have more blame than we know.

The university had made other preparations. Law school administrators had warned university officials that students could run afoul of the university's speaker policy that day, according to an email obtained by The Times. The university sent an official to join others representing the law school. But when the judge asked for an administrator, it was Ms. Steinbach who stepped up to the podium.

It was never clear to me why Steinbach, of all people, came to the podium when Judge Duncan asked for an administrator. Even worse, why did no one go to the podium earlier when there was relentless heckling? It was not Judge Duncan's job to signal for help.

Steinbach explains that she viewed her role as de-escalating the crisis. And, for the first time, Steinbach acknowledged that she erred–sort of. I think this statement is a cop-out. The university had a policy that she ignored. Instead, she took 6 minutes to attack an invited speaker on behalf of the administration.

"My role was to de-escalate," Ms. Steinbach said. She wanted to placate students who said they were upset with Judge Duncan — "and to, I hoped, give the judge space to speak his prepared remarks." In hindsight, she said, she did not get the balance right. She noted, however, that she had been speaking to students in the room, and did not realize that her words would be blasted out to the world.

Oh come on. The event was being recorded by the school, and countless phones. She spent time crafting her words carefully. She had to know her words would be broadcasted worldwide. I don't believe she is so naïve.

Rosenberger, the chapter President, faulted Steinbach to a degree:

Mr. Rosenberger said that he had been upset by Ms. Steinbach's remarks in the lecture hall but that she had been something of a "scapegoat" for the university's broader failure to protect speech.

He said that he wished an official had stepped to the podium and warned students that further disruption would be in violation of the university's free-speech policy — but that Ms. Steinbach, as D.E.I. dean, was not that messenger.

"If she was the administrator whose job was to enforce the no-disruption policy, then yeah, she totally failed, but that's not her job description," Mr. Rosenberger said. "People have called her stupid and incompetent. She's a smart and good person who was just put in a really bad spot."

Again, why did Steinbach go up there to deliver a prepared six-minute remark? She obviously had intended to speak to the room. This wasn't impromptu. Dean Martinez again throws Steinbach under the bus:

Dean Martinez, in an email to The Times, said that one of the problems that day was a "lack of clear communication" among administrators in the room. But she laid at least part of the blame with Ms. Steinbach.

"Regardless of what should have happened up to that point," she wrote, "when Judge Duncan asked for an administrator to help restore order, it was Ms. Steinbach who responded, introduced herself as an administrator, and then delivered remarks."

For whatever reason, Steinbach deemed it her role not to enforce university policy, but to engage in conflict resolution. Again, the DEI administrator misunderstood her role on campus.

I'll have much more to say about this topic in a future column.