I thought your original piece was spot on and this is as good or even better. As a socially liberal lawyer, I am really disappointed in the law students and even more so in the Dean of DEI for trying to shut down the Judge’s speech - even though I think that thenJudge and a few others like him are not qualified to be on the bench, but that’s a whole ‘ nother argument. In this case I do think this guy was invited partly to bait the students and provoke the reaction he got in furtherance of the victim hood card frequently being played by the right. But that still doesn’t give the students the right to censor him- two wrongs don’t make a right and his behaviors doesn’t legitimize theirs.
Ken White is simply one of the best we have on the First Amendment.
He's crystal clear on the crucial distinction between preventing or punishing speech, and harshly or rudely criticizing it on the other hand. The position of the boundary is the point. He also discussed a principle of evenhandedness, where neither side (right or left) is allowed to gain an advantage by declaring a different boundary depending on who you are.
These principles seem obvious, but it's the application that counts. He does us a service -- he shows in careful detail how they apply in a complex, concrete, emotional situation like the Stanford incident. He quickly discovers that the speech claims of both sides are bossy, hypocritical, and garbled. Thus the previous post trashed both sides.
What else can you do? They're execrable and make no sense.
But -- hot as he runs, he does it with a precision laser. Never lose focus, avoid collateral damage. You can't turn up the laser to full strength until you have exactly the right target.
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
I like your take that “you can tell it’s a good letter because it’ll make everybody mad.” That’s certainly what I’ve seen so far.
It is important context that, as you have noted elsewhere, SLS FedSoc are the same people who last year filed a complaint to try (in vain) to keep a student from graduating because he’d posted a flyer poking fun at them. That is, when a student *did* engage in civil counterspeech — the very thing many people agree the students here should’ve done instead — FedSoc demanded punishment. Counterspeech and the heckler’s veto are equally unacceptable to them. When they get any pushback, be it mild or moblike, to their “own the libs” games, they play the victim and call on the school to make it stop. Those are the actions of bullies and hypocrites, not principled people who actually believe in free speech.
Did that belong in the Dean’s letter? No. But it’s context that she and the rest of the administration need to keep in mind, because they got played by FedSoc in the flyer fiasco, and this time the shouting students got played and the administration got dragged into it. The provocations will surely continue, but she must keep a steady hand on the wheel. I don’t envy her.
Responding to bullshit takes 1000x the energy needed to generate it. That’s not something the Dean was in a position to spell out in her letter; the students will just have to figure it out on their own. Welcome to being a lawyer.
That statement describes the fuzzy definitions of various woke totems proscribed by recent legislation here in Florida. Which books should be banned or statues clothed? It's cancel culture in reverse and it's insidious.
That was great. I thought it was particularly good how she recognized that the students weren't given fair warning their conduct was unacceptable, indeed were encouraged by an administrator to engage it, so it would be wrong to punish them. I also like the fact she didn't feel the need to rebuke judge Duncan for his behavior. While he was provoked he didn't behave in a great fashion but I appreciate the fact that the dean realizes policing the judge's courtesy isn't her job and doesn't somehow excuse the students' behavior.
P.S. If you care about this sort of thing I think somehow an uncontroversial got changed to "in controversial." (right after the "again this ought not to be controversial"). I don't, since the meaning was clear but I know some ppl like to told so they can fix these things.
Thank you for this post and going through the Dean’s comments section by section. Excellent. You do such a fantastic job of explaining legal stuff to those of us whose brains don’t work that way (engineer here!).I have a hundred basic questions about the law; maybe someday, you can do a open call for questions!
If I have a quibble, and it is a minor one, it is that many of the insulting and scatological things that the students said while they were protesting were not objectionable simply because they were part of an attempt to silence the judge, but because they were breaches of decorum and acceptable behavior in themselves.
For instance, the student who asked the judge “Why can’t you find the clitoris“ could not possibly have been in any doubt about whether that was an acceptable question to be asking an invited speaker. Even if the students were arguably confused as to whether disrupting the event was permissible, they they knew damn well that some of the things they were saying were not appropriate for the venue, and that transgression should be punished just as if they had yelled the same thing at a professor.
An anti-LGBTQ bigot was on the Purdue University campus this past week.
While there was much hubbub about his presence, he was able to offer his inanity to many hundreds of people.
Meanwhile, as dozens of protestors stood outside the venue of bigotry, a larger number of people than the bigot's attendees attended a Drag Queen event at the campus theatre.
Now that's what I call a civil reaction to a speaker one wants to protest.
These last two posts were excellent, Ken (I know the first one was harsh, but we like that once in a while, don't we?). I thought Dean Martinez's letter was incredibly well done, and speaks well for the leadership (overall) at Stanford Law (or at least her leadership). I really think it hit all the right notes, and I think her approach to whether or not the students would receive discipline was well-thought out and understands that these students, as smart as they may be, are still students. That doesn't mean they shouldn't be held accountable for their behavior, but a warning and education in this specific topic is the better first step (because next time those students who receive the training have no excuse or defense to whatever discipline they receive). The point of the school, of course, is not to discipline students, but to educate them. And Dean Martinez's approach recognizes exactly that.
Interesting as always, but I think it overlooks an important concept: there is always a difference between the Law, and all other consequences. (And not just because the Law, uppercase, can't handle everything that happens, but also because people are just people.) There has always been a space between Law and general consequences (e.g., the proverbial punch to the face), called Getting Away with It.
Not that I would expect you to ignore a tiny stone if it gets in your teeth or anything like that, but the scale of what you can get away with varies for the parties in these kinds of disputes. I may be biased by lack of research on the subject, but it seems apparent that this era is strongly marked by various sides trying to find out just how much they can get away with--and expanding that to include violent or nearly violent pushback (also known as threats). It's a crazy time.
The answer? As pushback grows, a sane society will do the same, even if just to keep things from toppling over (but of course, things can always topple if they get too top heavy). In this environment, I do not think that better regulations is useful, sane, or effective. It's a same old same old, of applying decorous policy to a fistfight. It's not everywhere, but the fashion is to play not just outside the rules, but in spite of the rules and as far as past them as you can get without loss of limb. (We're at Jingoism, I'm saying.)
The elevated levels of confrontation do and don't remind me of the 60s, when I was heavily appalled by the response of authority to student activists (and of course if one digs into it, racism was also a big factor at the time, but better disguised, maybe?). At least for me, it is common sense as to who is the aggressor (inclusive) and who is the victim (reactive). I don't think it is wrong for a victim to fight back, is what I'm saying, and the more the right antagonizes, the greater the violence it will instigate.
Right and Wrong, as we know, are only partially coupled to the law; laws get passed and policies harden that deliberately hurt, disenfranchise, even kill people (right-to-work, for example, or the Supreme Court's police-related decisions that basically are enabling for excessive force).
To the average citizen, the law is alien, quite often the enemy. Expecting respect for law is especially too much when you live in a time like today, or the 60s that I sharpened my anti-establishment teeth on. This doesn't meant that I get your position, but what it looks like from here is a reflexive belief that the law can be effective. I suppose, technically, it can, but in practice, it's deeply flawed, even to the point of lawlessness. Complex, perverse, etc. but: not everyone bears the same burdens of inequality with the law, and between those who ignore it (my interpretation of the Right) and those who flaunt it (oops, money again!), and those who suffer under the heel of it. respect for law is necessarily hard to come by, and anyone working within that framework can be most effective when they recognize that weakness in the system.
Now, that's something of a diatribe, and very reactionary, not not at all rigorous. Not to mention one-sided. Granted. But having been in the trenches, having had to hide from The Law because they were acting completely outside of both law and civilization, the human element seems to me to trump the law at every f'ing turn. Where, and how do we deal with that? (Not that I think there's an answer to hand.) In short: what does a powerless person do when the law fails, maybe violently, maybe silently?
This was a fascinating read, and the comments were equally fascinating. I feel like I learned a lot, and still have a lot to think about.
One thing shocked me but maybe i misunderstood it: "Some people criticized me for saying that Stanford Law students ought to be unemployable if they believe they have the right to dictate who can and can’t speak and who can and can’t listen."
Is this serious? It's framed seriously and even doubles down from a prior statement. But how can it be serious? Cops believe they can dictate who can and can't speak/listen. Politicians damn sure do. School boards. Teachers. Managers. Corporations. People on social media. I'm sure there is a subset of Americans who doesn't feel that they can dictate such things, but if they're the only ones allowed to be employed, we aren't going to have much of a society. But maybe I'm taking hyperbole too literally.
Thanks for another clear post on this matter. Obviously, Dean Martinez deserves the plaudits here, but you were out front in your original post, and this annotated abstract of her very long letter is a fine service.
One of the things I most like about Martinez's letter is her reminder that DEI is not correctly reduced to the caricature that some (not all) progressives encourage and that conservatives like to describe, one that tends to limit diversity to issues of descriptive characteristics, such as race and gender, views equity as a formulaic distribution of goods based on identity categories, and measures inclusion according to magnitudes of reported negative feelings.
There is a constructive and socially promising framework for DEI that applies diversity to all identities and expressions of ideas (within the range protected by First Amendment law); views equity in terms of the imperative to equally equip people to achieve success based on combinations of their abilities, individual needs (which may in part be products of systemic forces), and motivation; and approaches inclusion by nurturing patterns of conduct that treat every individual as a uniquely valuable member of the community.
Those ideals are abstract, but they can guide communities in discovering the specifics that apply to their particular circumstances. This form of DEI, it seems to me, is in tension with social approaches that highlight identity, intersectionality, and models of oppressor/oppressed dualism, but I think those approaches have their own contributions to offer. The difficult goal would be to recognize the tension between the two approaches and negotiate it with social creativity for which tolerant speech (and listening) behavior is essential.
> Some people criticized me for saying that Stanford Law students ought to be unemployable if they believe they have the right to dictate who can and can’t speak and who can and can’t listen.
I see what you're saying, but I would amend this to "...students ought to be unemployable *while* the believe...". These are students; their education is self-evidently incomplete (as Dean Martinez has clearly realized and which she is planning to remediate). Having done something stupid in the past does not indicate a permanent, irredeemable personality defect, and it's important to emphasize this fact. Like what you said earlier about not penalizing the students as students, if your claim is that someone needs to change, you need to at least allow for the possibility that they will change.
I don't think you were actually arguing that taking part in this protest should permanently mark these students in particular as unemployable outcasts - I take it to be a comment on a Stanford Law degree as a certificate of competence - but it's important to emphasize that people in a free society will make errors and can nevertheless learn, grow, and make valuable contributions to that society.
I thought your original piece was spot on and this is as good or even better. As a socially liberal lawyer, I am really disappointed in the law students and even more so in the Dean of DEI for trying to shut down the Judge’s speech - even though I think that thenJudge and a few others like him are not qualified to be on the bench, but that’s a whole ‘ nother argument. In this case I do think this guy was invited partly to bait the students and provoke the reaction he got in furtherance of the victim hood card frequently being played by the right. But that still doesn’t give the students the right to censor him- two wrongs don’t make a right and his behaviors doesn’t legitimize theirs.
Ken White is simply one of the best we have on the First Amendment.
He's crystal clear on the crucial distinction between preventing or punishing speech, and harshly or rudely criticizing it on the other hand. The position of the boundary is the point. He also discussed a principle of evenhandedness, where neither side (right or left) is allowed to gain an advantage by declaring a different boundary depending on who you are.
These principles seem obvious, but it's the application that counts. He does us a service -- he shows in careful detail how they apply in a complex, concrete, emotional situation like the Stanford incident. He quickly discovers that the speech claims of both sides are bossy, hypocritical, and garbled. Thus the previous post trashed both sides.
What else can you do? They're execrable and make no sense.
But -- hot as he runs, he does it with a precision laser. Never lose focus, avoid collateral damage. You can't turn up the laser to full strength until you have exactly the right target.
ROPER: So now you'd give the Devil benefit of law!
MORE: Yes. What would you do? Cut a great road through the law to get after the Devil?
ROPER: I'd cut down every law in England to do that!
MORE: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
I like your take that “you can tell it’s a good letter because it’ll make everybody mad.” That’s certainly what I’ve seen so far.
It is important context that, as you have noted elsewhere, SLS FedSoc are the same people who last year filed a complaint to try (in vain) to keep a student from graduating because he’d posted a flyer poking fun at them. That is, when a student *did* engage in civil counterspeech — the very thing many people agree the students here should’ve done instead — FedSoc demanded punishment. Counterspeech and the heckler’s veto are equally unacceptable to them. When they get any pushback, be it mild or moblike, to their “own the libs” games, they play the victim and call on the school to make it stop. Those are the actions of bullies and hypocrites, not principled people who actually believe in free speech.
Did that belong in the Dean’s letter? No. But it’s context that she and the rest of the administration need to keep in mind, because they got played by FedSoc in the flyer fiasco, and this time the shouting students got played and the administration got dragged into it. The provocations will surely continue, but she must keep a steady hand on the wheel. I don’t envy her.
Responding to bullshit takes 1000x the energy needed to generate it. That’s not something the Dean was in a position to spell out in her letter; the students will just have to figure it out on their own. Welcome to being a lawyer.
Ambiguity kills free speech,"
That statement describes the fuzzy definitions of various woke totems proscribed by recent legislation here in Florida. Which books should be banned or statues clothed? It's cancel culture in reverse and it's insidious.
That was great. I thought it was particularly good how she recognized that the students weren't given fair warning their conduct was unacceptable, indeed were encouraged by an administrator to engage it, so it would be wrong to punish them. I also like the fact she didn't feel the need to rebuke judge Duncan for his behavior. While he was provoked he didn't behave in a great fashion but I appreciate the fact that the dean realizes policing the judge's courtesy isn't her job and doesn't somehow excuse the students' behavior.
P.S. If you care about this sort of thing I think somehow an uncontroversial got changed to "in controversial." (right after the "again this ought not to be controversial"). I don't, since the meaning was clear but I know some ppl like to told so they can fix these things.
Thank you for this post and going through the Dean’s comments section by section. Excellent. You do such a fantastic job of explaining legal stuff to those of us whose brains don’t work that way (engineer here!).I have a hundred basic questions about the law; maybe someday, you can do a open call for questions!
Amen to most of that.
If I have a quibble, and it is a minor one, it is that many of the insulting and scatological things that the students said while they were protesting were not objectionable simply because they were part of an attempt to silence the judge, but because they were breaches of decorum and acceptable behavior in themselves.
For instance, the student who asked the judge “Why can’t you find the clitoris“ could not possibly have been in any doubt about whether that was an acceptable question to be asking an invited speaker. Even if the students were arguably confused as to whether disrupting the event was permissible, they they knew damn well that some of the things they were saying were not appropriate for the venue, and that transgression should be punished just as if they had yelled the same thing at a professor.
Thanks, Ken.
An anti-LGBTQ bigot was on the Purdue University campus this past week.
While there was much hubbub about his presence, he was able to offer his inanity to many hundreds of people.
Meanwhile, as dozens of protestors stood outside the venue of bigotry, a larger number of people than the bigot's attendees attended a Drag Queen event at the campus theatre.
Now that's what I call a civil reaction to a speaker one wants to protest.
These last two posts were excellent, Ken (I know the first one was harsh, but we like that once in a while, don't we?). I thought Dean Martinez's letter was incredibly well done, and speaks well for the leadership (overall) at Stanford Law (or at least her leadership). I really think it hit all the right notes, and I think her approach to whether or not the students would receive discipline was well-thought out and understands that these students, as smart as they may be, are still students. That doesn't mean they shouldn't be held accountable for their behavior, but a warning and education in this specific topic is the better first step (because next time those students who receive the training have no excuse or defense to whatever discipline they receive). The point of the school, of course, is not to discipline students, but to educate them. And Dean Martinez's approach recognizes exactly that.
Interesting as always, but I think it overlooks an important concept: there is always a difference between the Law, and all other consequences. (And not just because the Law, uppercase, can't handle everything that happens, but also because people are just people.) There has always been a space between Law and general consequences (e.g., the proverbial punch to the face), called Getting Away with It.
Not that I would expect you to ignore a tiny stone if it gets in your teeth or anything like that, but the scale of what you can get away with varies for the parties in these kinds of disputes. I may be biased by lack of research on the subject, but it seems apparent that this era is strongly marked by various sides trying to find out just how much they can get away with--and expanding that to include violent or nearly violent pushback (also known as threats). It's a crazy time.
The answer? As pushback grows, a sane society will do the same, even if just to keep things from toppling over (but of course, things can always topple if they get too top heavy). In this environment, I do not think that better regulations is useful, sane, or effective. It's a same old same old, of applying decorous policy to a fistfight. It's not everywhere, but the fashion is to play not just outside the rules, but in spite of the rules and as far as past them as you can get without loss of limb. (We're at Jingoism, I'm saying.)
The elevated levels of confrontation do and don't remind me of the 60s, when I was heavily appalled by the response of authority to student activists (and of course if one digs into it, racism was also a big factor at the time, but better disguised, maybe?). At least for me, it is common sense as to who is the aggressor (inclusive) and who is the victim (reactive). I don't think it is wrong for a victim to fight back, is what I'm saying, and the more the right antagonizes, the greater the violence it will instigate.
Right and Wrong, as we know, are only partially coupled to the law; laws get passed and policies harden that deliberately hurt, disenfranchise, even kill people (right-to-work, for example, or the Supreme Court's police-related decisions that basically are enabling for excessive force).
To the average citizen, the law is alien, quite often the enemy. Expecting respect for law is especially too much when you live in a time like today, or the 60s that I sharpened my anti-establishment teeth on. This doesn't meant that I get your position, but what it looks like from here is a reflexive belief that the law can be effective. I suppose, technically, it can, but in practice, it's deeply flawed, even to the point of lawlessness. Complex, perverse, etc. but: not everyone bears the same burdens of inequality with the law, and between those who ignore it (my interpretation of the Right) and those who flaunt it (oops, money again!), and those who suffer under the heel of it. respect for law is necessarily hard to come by, and anyone working within that framework can be most effective when they recognize that weakness in the system.
Now, that's something of a diatribe, and very reactionary, not not at all rigorous. Not to mention one-sided. Granted. But having been in the trenches, having had to hide from The Law because they were acting completely outside of both law and civilization, the human element seems to me to trump the law at every f'ing turn. Where, and how do we deal with that? (Not that I think there's an answer to hand.) In short: what does a powerless person do when the law fails, maybe violently, maybe silently?
This was a fascinating read, and the comments were equally fascinating. I feel like I learned a lot, and still have a lot to think about.
One thing shocked me but maybe i misunderstood it: "Some people criticized me for saying that Stanford Law students ought to be unemployable if they believe they have the right to dictate who can and can’t speak and who can and can’t listen."
Is this serious? It's framed seriously and even doubles down from a prior statement. But how can it be serious? Cops believe they can dictate who can and can't speak/listen. Politicians damn sure do. School boards. Teachers. Managers. Corporations. People on social media. I'm sure there is a subset of Americans who doesn't feel that they can dictate such things, but if they're the only ones allowed to be employed, we aren't going to have much of a society. But maybe I'm taking hyperbole too literally.
Thanks for another clear post on this matter. Obviously, Dean Martinez deserves the plaudits here, but you were out front in your original post, and this annotated abstract of her very long letter is a fine service.
One of the things I most like about Martinez's letter is her reminder that DEI is not correctly reduced to the caricature that some (not all) progressives encourage and that conservatives like to describe, one that tends to limit diversity to issues of descriptive characteristics, such as race and gender, views equity as a formulaic distribution of goods based on identity categories, and measures inclusion according to magnitudes of reported negative feelings.
There is a constructive and socially promising framework for DEI that applies diversity to all identities and expressions of ideas (within the range protected by First Amendment law); views equity in terms of the imperative to equally equip people to achieve success based on combinations of their abilities, individual needs (which may in part be products of systemic forces), and motivation; and approaches inclusion by nurturing patterns of conduct that treat every individual as a uniquely valuable member of the community.
Those ideals are abstract, but they can guide communities in discovering the specifics that apply to their particular circumstances. This form of DEI, it seems to me, is in tension with social approaches that highlight identity, intersectionality, and models of oppressor/oppressed dualism, but I think those approaches have their own contributions to offer. The difficult goal would be to recognize the tension between the two approaches and negotiate it with social creativity for which tolerant speech (and listening) behavior is essential.
I guess I'm not part of "almost everybody"? Everything seems reasonable and proportional and designed to mitigate or entirely avert future problems.
Not sure what I ought to be mad about.
Well said (by Dean Martinez, and by our host).
> Some people criticized me for saying that Stanford Law students ought to be unemployable if they believe they have the right to dictate who can and can’t speak and who can and can’t listen.
I see what you're saying, but I would amend this to "...students ought to be unemployable *while* the believe...". These are students; their education is self-evidently incomplete (as Dean Martinez has clearly realized and which she is planning to remediate). Having done something stupid in the past does not indicate a permanent, irredeemable personality defect, and it's important to emphasize this fact. Like what you said earlier about not penalizing the students as students, if your claim is that someone needs to change, you need to at least allow for the possibility that they will change.
I don't think you were actually arguing that taking part in this protest should permanently mark these students in particular as unemployable outcasts - I take it to be a comment on a Stanford Law degree as a certificate of competence - but it's important to emphasize that people in a free society will make errors and can nevertheless learn, grow, and make valuable contributions to that society.