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Monday, March 27, 2023

Judge Duncan still does not get it

I was not at Judge Duncan's talk at Notre Dame last week, have not seen video, and have not read a transcript. I have only Bloomberg's with-a-gain-of-salt reporting. Whatever the sins of the most-disruptive Stanford students at Stanford, Duncan continues to recast the protest (and perhaps all criticism of him) as something other than the exercise of free speech the First Amendment envisions.

According to Bloomberg, the students acted wrongly because they "'staged a public shaming.'" Duncan had "harsh words for the Stanford protesters on Friday, saying they were there to 'heckle' and to 'shame.' 'Let’s say the quiet part out loud. The mob came to target me because they hated my work and my ideas,' said Duncan."

Yes, and? Heckling and responding negatively to a speaker is counter-speech. Public shaming is counter-speech. Targeting a government official for criticism because they hate his work and ideas is counter-speech. In fact, it seems to me exactly what people are supposed to do in response to a government official's disagreeable actions. Note Duncan's move here--criticizing his work and ideas, least in anything other than a polite conversation in which he is under no obligation (or inclination) to engage, is mob behavior. To criticize ideas is to censor those ideas.

Duncan continues to harp on "civil discourse" as the only form of appropriate discourse. But that encounters two problems. First, it ignores the profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. (Maybe this is why conservatives are so hot to overrule New York Times). Civil discourse is perhaps an ideal; it is not the limit of the First Amendment. Second, Duncan concedes it appropriate to abandon civil discourse at times; writing in the WSJ, he justified his in-the-moment rudeness towards the students because sometimes anger is the appropriate response to “vicious behavior.” But that is a fancy way of saying "they started it." And, of course, the students would say he started it through a judicial decision rejecting, in dismissive tones, concerns about how the government addresses trans people. The students viewed that decision as an example of vicious governmental behavior, therefore, on Duncan's argument, anger should be the appropriate response.

Duncan is not talking to me or trying to convince me. But like many other "free-speech warriors," he cannot help but reveal the thinness of his actual support for free speech other than his or the speech he likes.

Posted by Howard Wasserman on March 27, 2023 at 10:40 AM in First Amendment, Howard Wasserman | Permalink


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