« Dean Angela Onwuachi-Willig at FIU | Main | Do We Need to Expand the House of Representatives? »

Tuesday, March 28, 2023

More on "Civil Discourse" and Judge Duncan

I was substantially offline for a while, and so missed a number of updates and posts -- scroll down, and read them all! -- regarding Judge Kyle Duncan's appearance at Stanford Law School.  (For my earlier take on what I continue to regard as the very bad behavior of some SLS students and a SLS administrator, go here.)  And, several Prawfs colleagues have weighed in on the follow-up news items, including Judge Duncan's recent talk at Notre Dame (which I did not attend), Dean Jenny Martinez's lengthy open letter (which I thought was very good), and Dean Tirien Steinbach's Wall Street Journal piece (which I thought presented a version of the SLS events that departed non-trivially from what took place).

It is often important and welcome to achieve disagreement, and Howard's recent post on Judge Duncan's Notre Dame speech suggests that we have.  (Yay, us!)  Although I generally endorse the all-in-free-speech-libertarianism vibe of the Sullivan quote, I continue to think Howard is wrong to characterize/frame disruption, insults, "public shaming," etc., during an invited lecture, organized in accord with normal procedures, in an academic setting as "counter-speech."  Putting aside all state-action issues:  To say that, in this particular context, the norm is that the invited speaker gets to speak without disruption is not to question, at all, the idea that "debate on public issues should be uninhibited" or to disagree that such debate may include "vehement, caustic, and sometimesly unpleasantly sharp attacks on . . . public officials."

I also think that the comparison suggested in an earlier post of Howard's doesn't work.  The decision by a university administrator not to permit, in a particular setting, a student group's proposed drag show implicates, it seems to me, different norms than does the decision by various students (and Dean Steinbach) to disrupt a lecture that was -- again, in accord with regular, established procedures -- approved. The former is a determination (which might well be mistaken) that a particular event is not appropriate in a particular context; that latter is a determination to undermine an event that was found to be appropriate for that context.

Posted by Rick Garnett on March 28, 2023 at 03:55 PM in Rick Garnett | Permalink


It is important to note:

“The Court rejected the government’s argument that the “exceeds authorized access” clause “incorporate[s] purpose-based limits contained in contracts and workplace policies.”
“The Court characterized its ruling as a “gates-up-or-down” approach: “[O]ne either can or cannot access a computer system, and one either can or cannot access certain areas within the system.” If a person “can” access the system or certain areas within it, that person does not violate Section 1030(a)(2) by doing so for an improper purpose.”


Posted by: N.D. | Apr 5, 2023 12:27:40 PM

There you go again, Orin, bringing subject-matter expertise into it.

Posted by: Paul Horwitz | Apr 5, 2023 11:45:12 AM

"Presumably if you hacked the code and overrode his policy, he'd be okay with that."

CFAA violations as counterspeech, I like it!

Posted by: Orin Kerr | Apr 5, 2023 4:21:31 AM

I can't speak for my co-bloggers who don't allow comments. Lord knows I can't speak for other blogs. Reasons vary. As i wrote when I changed approaches, I prefer to allow comments but I also prefer to moderate them, and when I don't feel I have the time to do so, I close them. This change was the product of my thoughts on what my comment stream looked like and the general state of discourse, not on what social media like Twitter looked like at the time, although what they look like, and the fact that they're available to those who want to use them, hasn't exactly changed my mind. I'm glad Steve is generally leaving them open, but am going to stick to my policy. Again, that's my approach; our blog as such has no single policy, and others here may have other policies and other reasons for them. I disagree with Howard on most of what he writes about free speech issues, but I do not think his approach to comments on his posts counts against him as anything more than a mild irony. Presumably if you hacked the code and overrode his policy, he'd be okay with that.

Posted by: "paul horwitz" | Apr 3, 2023 8:29:47 AM

@not today FBI

I have found it interesting how many blog posts on here do not permit comments. Why is this? Is it just to avoid any criticism? Perhaps it's an age thing, given that I grew up with constant access to and engagement with online arguments (and with that, internet trolling), but I could never imagine prohibiting comments on anything I post. If someone says something mean to you online, who cares?

Posted by: AspiringLawProfessor | Apr 3, 2023 6:56:55 AM


4/1 House Republicans Ask American Bar Association To Investigate Stanford Law School Over Duncan Disruption Law * * * school may be 'out of compliance' with accreditation standards on academic freedom

House Republicans are asking the American Bar Association to investigate Stanford Law School over the disruption of Fifth Circuit appellate judge Kyle Duncan, arguing that the law school is "out of compliance" with accreditation standards that require it to promote free speech.
Stanford violated that requirement, the House Committee on Education and the Workforce said in a Friday letter to the bar association, by allowing and even encouraging students to shout down Duncan last month. The committee emphasized the remarks of Tirien Steinbach, the law school diversity dean who took the podium from the judge and harangued him for causing "harm."
Law schools must remain accredited by the American Bar Association to receive federal funds. A review of Stanford's accreditation would directly threaten its finances, upping pressure on the school to sanction the disruptors.
"In no sense can it be said that Stanford Law School adhered to its announced encouragement of the 'widest range of viewpoints,'" the letter reads. "And in no sense were Judge Duncan's viewpoints 'free from … internal or external coercion.'"
Having a policy, the letter adds, "implies that the law school follows its policy."
Though Steinbach is on leave, Stanford has declined to discipline the students who disrupted Duncan, saying it would be unfair to do so given the "conflicting signals" they received.
That decision has compounded the law school's public relations problem, with at least one prominent law professor, John Banzhaf of George Washington University, preparing to file a bar complaint against the hecklers.


4/1 Will The ABA And California Bar Get Involved In The Stanford Law School Free Speech Imbroglio?

[A]n emeritus professor at George Washington University Law School, ... [John] Banzhaf, 82, is among the most accomplished and aggressive public interest lawyers in the United States. ... Now this this self-proclaimed "legal terrorist" has set his sights on an unlikely target: the Stanford Law School students who shouted down Fifth Circuit appellate judge Kyle Duncan.
Banzhaf told Stanford earlier this month that he will file a character and fitness complaint against the students with the California state bar.
"Judges in particular should be outraged that a fellow judge received this kind of treatment," Banzhaf said. "My guess is that the California bar will take this seriously."

Posted by: LawProf John Banzhaf | Apr 1, 2023 2:32:27 PM

Does anyone else find it funny that Prof. W. celebrates "counterspeech," even when it drowns out initial speech, but does not allow comments on his posts?

Yes, I know this isn't a state-run forum, but still.

Posted by: not today FBI | Mar 31, 2023 4:37:20 PM

I, too, will respond and move on.

“The reference to "inherent Dignity" is not objective. It's a subjective belief.”

And therein lies the heart of the matter. If a Nation no longer holds the self-evident Truth, that every son or daughter of a human person, from the moment of conception has been Created in The Image Of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption, anything can become permissible, including the destruction of the life of a beloved son or daughter residing in their mother’s womb.

“A civilization in decline digs its own grave with a relentless
consistency.”-Bernard Lonergan

The decline always has the same starting point, a deficiency in Love, that claims that beloved sons and daughters of human persons do not possess equal human Dignity, and once it becomes permissible to destroy the life of an innocent human person, all hell breaks loose.

“Decline has a still deeper level. Not only does it compromise and distort progress. Not only do inattention, obtuseness,
unreasonableness, irresponsibility produce objectively absurd situations. Not only do ideologies corrupt minds. But
compromise and distortion discredit progress. Objectively absurd situations do not yield treatment. Corrupt minds have a flair
for picking the mistaken solution and insisting that it alone is intelligent, reasonable, good. Imperceptibly the corruption
spreads from the harsh sphere of material advantage and power to the mass media, the stylish journals, the literary
movements, the educational process, the reigning philosophies. A civilization in decline digs its own grave with a relentless
consistency.”-Bernard Lonergan
H/T Chris Friel (Quote from the introduction of a paper I have not finished reading)

When you compromise Truth, you will always end with error.

Christ’s Sacrifice On The Cross will lead us to Salvation, but we must desire forgiveness for our sins, and accept Salvational Love, God’s Gift Of Grace And Mercy; believe in The Power And The Glory Of Salvation Love, and rejoice in the fact that No Greater Love Is There Than This, To Desire Salvation For One’s Beloved.
“Hail The Cross, Our Only Hope.”

“For where your treasure is there will your heart be also.”

“Come Holy Ghost.”

Posted by: N.D. | Mar 31, 2023 9:45:25 AM

I don't want to belabor this point but JHW's comment suggested to me that drag shows were somehow relevant.

I'll respond and move on.


The reference to "inherent Dignity" is not objective. It's a subjective belief.

Lots of people do not think portrayals of drag "demean the inherent dignity" of people. Others do.

A religious or even philosophical dispute on what that means is not only not really appropriate here, but underlines why exploring it is appropriate in institutions of learning.

"transform a Shakespeare Play into a “drag show”

The original plays only used male actors. Men played female parts. They were "in drag." But, the framing again makes me wonder what a "drag show" is supposed to mean. Like Tootsie was about a man in drag. But, maybe he didn't do it in way that "demeaned" women or something. Something quite open to debate.

To be explored in academic institutions. I will leave it there. Thanks for leaving open the comments.

Posted by: Joe | Mar 30, 2023 11:56:30 AM

I am not an expert on anything, but I know this to be true:
Aristotle was mistaken when he described a virtue as a "mean" or "intermediate" between two extremes: one of excess and one of deficiency, for every sinful act contains a deficiency of Love, while an excess of Love cannot contain any deficiency.

Our inherent Unalienable Right to Religious Liberty exists so that we can freely come to Know, Love, And Serve The True God In This World, And Hopefully, Be With God And Our Beloved For Eternity In Heaven. Love, which exists in relationship, is pure gift that is given freely from the heart, and devoid of every form of lust. We can freely choose to Love Perfect Love, God or reject Perfect Love. Our Founding Fathers protected our inherent Unalienable Right to Religious Liberty because they recognized that Religious Liberty, rightly ordered to Perfect Love, God, Who Is Life-affirming and Life-sustaining, would serve to complement and thus enhance the value of the State.

Posted by: N.D. | Mar 30, 2023 10:52:19 AM

Joe, specifically, how does a “drag show”, that portrays men and/or women in a light that demeans their inherent Dignity as beloved sons and daughters, brothers and sisters, husbands and wives, fathers and mother’s, have redeeming value? Do you believe that any Institution that values the inherent Dignity of the human person would desire to transform a Shakespeare Play into a “drag show”, perverting the work of Shakespeare for the purpose of “exploring and challenging “gender roles”, through dialogue and action that is indecent, demeaning, and offensive to every human person?

What specifically is the redeeming value in exploring and challenging “gender roles” through indecent, demeaning, and offensive behavior?

Posted by: N.D. | Mar 30, 2023 9:44:03 AM

When Erwin Chemerinsky disagrees with you (Howard) on a Con Law issue, you're very, very likely wrong. So I would rest assured, Rick, that you've got the right position here. See Chemerinsky's op ed in the Sacramento Bee March 28 (https://www.sacbee.com/opinion/op-ed/article273645255.html).

Posted by: anonymous | Mar 30, 2023 9:25:02 AM

I second JHW.

"Why would an Institute of Learning, or any Institute, for that matter, desire to promote behavior that is not considerate, respectful, responsible, and thus civilized?"

I think a "drag show" can be quite redeeming, without being too clear on what that means. A re-enactment of original Shakespeare plays would be a "drag show," since there were no female actresses. A live performance of many plays or films would involve "drag." Tootsie comes to mind.

Speech often includes disrespectful components. So, an institute of learning will not only allow "civilized" speech.

Either way, "drag shows" explore and challenge gender roles. That is quite appropriate for institutions of learning to allow.

Would drag shows involving women parodying appropriate "male" dress "discriminate against womanhood" too?

Posted by: Joe | Mar 29, 2023 9:16:36 PM

“So what.”

So what would be the redeeming value in a “Drag Show”.

Why would an Institute of Learning, or any Institute, for that matter, desire to promote behavior that is not considerate, respectful, responsible and thus civilized?
Certainly any Institution that would justify the promotion of such behavior that demeans the inherent Dignity of all beloved daughters, sisters, wives, and mothers, must detest the essence of being in essence a beloved daughter, sister, wife, and mother, which could never be deemed to be a benevolent intent.

Posted by: N.D. | Mar 29, 2023 2:03:35 PM


I admittedly haven't been following the individual reactions of any particular conservative officials or commentators, even those of Judge Duncan. I was just speaking in more general terms because I've seen this type of scenario play out multiple times and responses along the lines of "Why are you criticizing the counterspeech? Don't you SUPPORT free speech?" always baffle me.

If Judge Duncan has, as you say, stated that the counterspeech should have been banned, then yes, I'd call him a hypocrite.

Posted by: AspiringLawProfessor | Mar 29, 2023 10:50:19 AM

Aspiring: " If, of course, a conservative were to also argue that the students should not have been permitted to engage in their counterspeech, that WOULD be hypocritical."

What's with the "if"? That is exactly what Duncan has claimed.

Posted by: Sigh. Why is this hard? | Mar 29, 2023 10:39:22 AM

N.D. -- "I would add that Drag shows are indecent, demeaning, and offensive to every woman who values modesty and desires to be respected for her inherent Dignity as a beloved daughter, sister, wife, and mother, and are indecent, demeaning, and offensive to every man who values the inherent Dignity of a beloved daughter, sister, wife, and mother."

So what?

Let's say all of that is completely true. I don't care. That's free speech; that's how it works. Feel free to continue being offended while the rest of us continue to speak anyway.

Posted by: Sigh. Why is this hard? | Mar 29, 2023 10:37:30 AM

I think more people need to divorce the notions of what should be protected speech from what should be acceptable speech. Do I believe that students should have the right to shout at an event speaker to the point that it wholly disrupts and ruins the event? Yes. Do I think this speech should be viewed as productive and acceptable? No.

It's possible to both view certain speech as worthy of protection while also criticizing said speech. Conservatives aren't necessarily behaving hypocritically by lambasting the SLS protesters for how they conducted themselves. If, of course, a conservative were to also argue that the students should not have been permitted to engage in their counterspeech, that WOULD be hypocritical.

Posted by: AspiringLawProfessor | Mar 29, 2023 9:08:35 AM

We express our thoughts through our words and our deeds.

West Texas A&M University President Walter Wendler said it best:

“Drag shows stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood," West Texas A&M University President Walter Wendler said in an email to students, faculty and staff. "Drag shows are derisive, divisive and demoralizing misogyny, no matter the stated intent."

I would add that Drag shows are indecent, demeaning, and offensive to every woman who values modesty and desires to be respected for her inherent Dignity as a beloved daughter, sister, wife, and mother, and are indecent, demeaning, and offensive to every man who values the inherent Dignity of a beloved daughter, sister, wife, and mother.

Posted by: N.D. | Mar 28, 2023 11:16:37 PM

It's true that a public university administrator declining to permit a drag show on account of its content is different from students disrupting a lecture. For example, the public university administrator is very clearly violating the First Amendment, while the students are not. (They are probably violating university rules and other important norms, of course.)

I think this post reinforces the point about asymmetry.

Posted by: JHW | Mar 28, 2023 6:00:15 PM


Stanford Doubles Down On Upholding Free Speech Violations;
It Tries Unsuccessfully to Hide Guilty Students’ Identities From Bar Authorities

Stanford Law Hides Identities of Students Who Shut down Conservative Judge

Professor Goes to War on Stanford Disruption

Stanford Law Students Who Shouted Down Judge May Be Reported to California Bar

Law Schools’ Heckling Trends Show Disturbing Future For The Legal System, Experts Argue

Posted by: LawProf John Banzhaf | Mar 28, 2023 4:24:17 PM

The comments to this entry are closed.