A Controversial Speaker Returned To Yale Law—You Won't Believe What Happened Next
Kristen Waggoner of the conservative Alliance Defending Freedom spoke at YLS on Tuesday; how was she received?
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Last October, I wondered whether Yale Law School, which experienced a series of scandals relating to free speech last year, might be turning over a new leaf. The YLS administration announced several concrete steps to protect speech and improve its intellectual climate, and there were early indications that they were bearing fruit—or that things were at least settling down at 127 Wall Street. For example, leading Supreme Court advocate Kannon Shanmugam came to give his traditional SCOTUS Term Preview to the Yale Federalist Society, and he was not protested—unlike the year before, when he faced 70 vocal protesters.
But Shanmugam, one of the nicest and most reasonable people you’ll ever meet, is not exactly a lightning rod, and he was protested mainly because his law firm, Paul, Weiss, represents ExxonMobil. A much better test for whether things have truly changed at Yale would be to host an event with the Queen of Darkness herself: Kristen Waggoner, the CEO, president, and general counsel of the Alliance Defending Freedom (“ADF”), the conservative Christian advocacy group that is loathed by the legal left for its stances on LGBTQ issues, among other things. When Waggoner spoke at Yale last March, all hell broke loose: more than 100 angry protesters attempted to shout down the event, and although they didn’t succeed in shutting it down, they did disrupt it significantly.
Last September, I suggested that Yale Law School should bring back Kristen Waggoner, arguing that “if Waggoner could return to 127 Wall Street and not have to leave the building with a police escort—or even leave having had a pleasant experience—that would go a long way toward showing an improved intellectual environment at Yale.” And it looks like someone heeded my suggestion.
This past Tuesday, January 24, Kristen Waggoner returned to Yale Law, this time to discuss 303 Creative LLC v. Elenis, which she argued before the Supreme Court in December. Waggoner’s client in 303 Creative is a Colorado website designer who doesn’t want to design websites for same-sex weddings, and the case presents the following question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”
303 Creative is one of the most interesting, important, and high-profile cases of the current Term, so it’s obvious why a law student group might want to host an event with one of the lawyers who argued it. In other words, I don’t consider the invitation to Waggoner to be “trolling” by the Yale Federalist Society, i.e., something done for the sole purpose of antagonizing the left.
In addition, Yale FedSoc arranged for Waggoner to be joined by two other speakers: Professor Nadine Strossen of New York Law School, who served as president of the American Civil Liberties Union from 1991 to 2008, and Professor Robert Post of Yale Law School, which he led as Dean from 2009 to 2017. Professors Post and Strossen are two of the nation’s leading scholars of the First Amendment, so an event featuring them plus Kristen Waggoner is impressive. Given my longstanding interest in the First Amendment and free speech, I would have wanted to attend myself, had it been open to the public.
So how did Tuesday’s YLS event with Kristen Waggoner go? In a word, swimmingly—which might surprise or even shock people who are used to associating the words “Yale Law School” with “free-speech debacle.”
More than 100 people attended the panel, which took place in Room 127, the largest classroom at YLS—and the site of last year’s rowdy protest. But this time around, things couldn’t have been more different, as reported by Aaron Sibarium of the Washington Free Beacon (who doesn’t pull his punches when it comes to Yale Law):
The event on Tuesday appears to have gone without a hitch. Nadine Strossen, the former president of the American Civil Liberties Union, joined Waggoner, the president of the Alliance Defending Freedom, for what was by all accounts a cordial, well-mannered discussion of First Amendment law. Students exiting the event said there were no ear-shattering chants, no profanity-laden signs, and no ad hominem questions.
“There was not even a peaceful protest,” Strossen told the Free Beacon.
I spoke yesterday with Robert Capodilupo, president of the Yale Federalist Society, and he confirmed that Tuesday’s event proceeded smoothly.
“We were very pleased to be able to host a conversation on this important case without any disruption or issues,” Capodilupo told me. “It was great to hear arguments on all sides of this issue presented by some of the legal world's leading First Amendment experts and to see so many students thoughtfully engaging with these ideas in good faith.”
Although there was no on-site protest of the 303 Creative event, critics of Waggoner and ADF were able to say their piece and make their views heard. On Monday, OutLaws, the LGBTQ student group at YLS, held an event of its own: a panel about the rise in right-wing violence against trans and queer people, featuring David Dinielli, a visiting clinical lecturer at YLS who previously worked on LGBTQ rights at the Southern Poverty Law Center, and Ryan Thoreson, a YLS alum who is now a specialist in the LGBT rights program at Human Rights Watch. This also sounds like an excellent event, which I would have wanted to attend—and I understand that several FedSoc members attended the OutLaws event, just as several OutLaws members attended the FedSoc event.
The ability to hold a “counter-event” like the one OutLaws hosted on Monday is why I never bought the argument that banning shout-downs means banning protest, or that people who oppose shout-downs simply want to squelch dissent. Holding an event offering views you espouse, at or around the same time as an event offering views you condemn, is a principled, productive form of protest. This is exactly how the marketplace of ideas is supposed to work.
There was one minor kerfuffle involving Tuesday’s event: members of the press were not allowed to attend, which wound up excluding Aaron Sibarium of the Washington Free Beacon, and he wrote an article about it. If I were in charge, I wouldn’t have excluded Sibarium, and I agree with Nadine Strossen that it was ironic to exclude the press from an event about free speech.
That said, the success of the event is far more important than the fact that one member of the press couldn’t attend. And there’s an argument to be made that the event might have turned out differently if attendees felt it was FedSoc ginning up a controversy for purposes of media coverage, as opposed to a genuine attempt to foster civil discourse at YLS about important issues.
So what explains the difference between last year’s event, which was a circus, and this year’s event, which was a success? There are lessons to be had for both student organizations and law school administrators.
Some credit should go to the Yale Federalist Society, which started preparing for this event far in advance. Last November, FedSoc officers met with Yale Law School Dean Heather Gerken and Dean of Students Jennifer Cerny, informing the deans of their desire to host an event with Waggoner. Deans Gerken and Cerny assured FedSoc that it would have the administration’s full institutional support.
Dean Gerken put the FedSoc officers in touch with Professor Douglas NeJaime, the faculty adviser to OutLaws, who told the FedSoc folks that he too did not want a repeat of last March. Professor NeJaime in turn gave a heads up about the Waggoner event to the officers of OutLaws, which gave them enough time to put together their own counter-event on Monday. Professor NeJaime and several members of OutLaws also attended the FedSoc event on Tuesday, where they asked thoughtful questions of the panelists in a respectful manner.
It’s also significant that the Yale FedSoc event featured Professor Post as moderator—an active moderator, who provided his own views as well. Having a prominent faculty member and former dean involved in the event was another sign of the YLS faculty and administration’s support for robust discourse about controversial subjects. At some other law schools, FedSoc officers have a hard time getting faculty members to participate in events because professors are afraid of criticism from the left for “legitimizing” the Federalist Society.
Finally, shortly before the event, FedSoc officers met with Associate Deans Debra Kroszner and Mike Thompson, to discuss how to handle possible protesters—a discussion that wound up not being necessary, but was still a good one to have had. So significant credit for Tuesday’s successful event must be given to the Dean Gerken and the Yale Law administration as well; without their strong support, it could have turned out very differently.
In light of these and other recent developments at YLS, I wondered: should federal judges stand down on their boycott of Yale Law in terms of clerkship hiring? I reached out to Judges James Ho (5th Cir.) and Lisa Branch (11th Cir.) to check in on the status of the boycott, but have not yet heard back.
As you might recall, Dean Gerken invited Judges Ho and Branch to speak at YLS about issues of free speech and intellectual diversity. That event, originally scheduled for January, has been rescheduled to March—so perhaps the judges are waiting to see what kind of reception they receive before officially lifting their boycott.
Critics of YLS would probably also note that the faculty is still sorely lacking in intellectual diversity, without a single conservative professor of public law, e.g., constitutional law. It’s possible that Judges Ho and Branch might want to see some movement on faculty hiring as well before declaring themselves satisfied that Yale Law is fully reformed.
So it might be premature for defenders of free speech and intellectual diversity to declare victory at YLS. But at least there’s now reason for cautious optimism from folks who care about these values—and who care about Yale Law School.
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