This week, Stanford Law School dean Jenny Martinez released a powerful defense of free speech in a 10-page letter to the entire school. The letter also revealed that Associate Dean Tirien Steinbach has been put on leave after her disgraceful condemnation of conservative appellate judge Stuart Duncan. Martinez chastised the students responsible for cancelling Duncan’s remarks by shouting him down. The letter follows an intimidating protest at Martinez’s class and demands that she withdraw an earlier apology. However, Martinez still refuses to hold the students personally accountable for their stopping the event.
Students were previously told that if they were traumatized by the cancelling of the event, they could go to Steinbach for support. It now appears that Steinbach will be on leave for an unspecified period.
The letter itself is a commendable and compelling defense of free speech values. Martinez reaffirms what many of us have said: students exercise their free speech in protesting outside of an event, but cannot go inside an event to disrupt it. She denounced the students for denying the free speech rights of others:
“Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protestors a “heckler’s veto.” As First Amendment scholar Dean Erwin Chemerinsky has written, “Freedom of speech does not protect a right to shout down others so they cannot be heard.”…
To the contrary, settled First Amendment law allows many governmental restrictions on heckling to preserve the countervailing interest in free speech…
…The President of the University and I have apologized to Judge Duncan for a very simple reason – to acknowledge that his speech was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members who wanted to hear them, as a result of the failure to ensure that the university’s disruption policies were followed.”
The letter is a full throated rejection of anti-free speech sentiments long voiced by figures in academia and the media. Many have argued that “deplatforming” or shouting down others to prevent them from speaking is a form of free speech. Cancel campaigns are now a common occurrence in schools ranging from Yale to Northwestern to Georgetown. Blocking others from speaking is not the exercise of free speech. It is the very antithesis of free speech.
Nevertheless, faculty have supported such claims. Years ago, at Rice University, I debated NYU Professor Jeremy Waldron who is a leading voice for speech codes. Waldron insisted that shutting down speakers through heckling is a form of free speech. It is not. It is a rationalization for stopping certain views from being voiced or heard in higher education. CUNY Law Dean Mary Lu Bilek showed how far this trend has gone. When conservative law professor Josh Blackman was stopped from speaking about “the importance of free speech,” Bilek insisted that disrupting the speech on free speech was free speech. (Bilek later cancelled herself and resigned). Even student newspapers have declared opposing speech to be outside of the protections of free speech.
Many anti-free speech voices in the media have repeated this twisted view of free speech. For example, Above the Law has been prominent in running columns supporting this view and even defending the lack of ideological diversity on faculties. Senior Editor Joe Patrice dismissed numerous polls showing that faculty and students now self-censor in fear that they will face cancel campaigns or sanctions. He defended “predominantly liberal faculties” and argued that hiring a conservative professor is akin to allowing a believer in geocentrism to teach. He also mocked students who are fearful of speaking freely in class, dismissing them as “just… conservatives being sad that everyone else makes fun of them.” Patrice has even denounced the use of “heckler’s veto” by myself and now the Stanford law dean.
Dean Martinez rejects those extremist views and that is much to her credit.
The problem is this statement:
“Several factors lead me to conclude that what is appropriate here is mandatory educational programming for our student body rather than referring specific students for disciplinary sanction. As one first step the law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession.”
It is a bit curious to require the victims of this disruption to attend mandatory free-speech sessions with those who denied their exercise of free speech.
The fact is that, as Martinez notes, the law school was already committed to free speech values and barred the disruption of such events. These students chose to ignore those rules because they knew that they would not be held accountable. They stopped the exercise of free speech because they believed that they had the license to do so. They even complained about their names being mentioned in an article after a campaign to name and shame conservative students. They failed to see why they should bear any consequences for stopping others from hearing views that they oppose.
Absent real accountability for these disruptions, they will continue. The hard part for administrators is not to embrace values that define higher education, but to defend those values in real terms. It is not popular or easy. However, Martinez just gave these students a pass after cancelling the remarks of a federal appellate judge and openly defying protections for free speech. That will convey a message of its own — a message at odds with the fine sentiments contained in this letter.