22 Comments
Mar 17, 2022Liked by David Lat

In 1972, as a 22 year old fresh out of West Virginia University, I surveyed the Yale Law School dining hall and saw Bill Clinton, Hillary Rodham, Sam Alito, Rob Reich, Clarence Thomas, Dick Blumenthal and other eventual stars in the legal firmament. I was struck with how confident they were in their often opposing views and yet how respectful they were to each other. They were abundantly talented young adults preparing to play major roles in American life. And on the faculty I saw Eugene Rostow, Lou Pollak, Clyde Summers, Ralph Winter, Harry Wellington, Abe Goldstein, Alexander Bickel, Ellen Peters, Guido Calabresi and other extraordinary scholars and public intellectuals. Again, they were entirely respectful (as best as I could tell) to each other, even though their views on legal issues often collided. Gene Rostow and Lou Pollak, whose views of constitutional law were less than fully aligned, co-taught my Constitutional Law II course! My experience at Yale Law School transformed my life, not least because it taught me to listen and think, and I’m thus terribly saddened to watch it as it exists today. I’m not close enough to say who is to blame, as there would appear to be a deeply rooted intolerance in much of the American academy, but the Dean’s leadership has been less than inspiring. I am close enough to conclude, however, that Yale Law School is unlikely to be part of any solution. Those days are over.

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Mar 21, 2022Liked by David Lat

I write not to weigh in again on Bethany Scott’s invocation of Karl (or Sam) Popper. You would rightly throw a flag for piling on if I were to do that. Instead, David, while you gave “credit” to Professor Kate Stith for her management of this situation, this now seems insufficient. The video evidence in fact displays Professor Stith’s moral, intellectual and physical courage as she stood tall in the face of borderline hooliganism in her classroom — all while her Dean is apparently asleep at the switch. She deserves more than credit. She deserves the deep gratitude of all who prize free speech and academic freedom. Thank you Professor Stith.

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Mar 18, 2022Liked by David Lat

Over at Slate, Mark Stern has a thoughtful and detailed account: https://slate.com/news-and-politics/2022/03/yale-law-school-laurence-silberman-free-speech-blacklist.html, which I found persuasive, especially regarding the Free Beacon's apparent mischaracterization of several key facts. However your notes regarding the disruption of other classes, some a way away, is (a) disturbing and (b) not echoed by Stern.

Keep up the good work.

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Mar 18, 2022Liked by David Lat

Great piece, and I appreciate your idealism in appealing to principles, not just to pragmatism. I found the first paragraph you quoted from Howard Wasserman confusing and poorly reasoned. While he is right that heckler’s “veto” is the wrong term to apply here (it would have been appropriate to use that term had YLS cancelled the talk because of the impending protest), Wasserman can’t understand the concept of counter-speech very well if he thinks shouting down a speaker is counter-speech. Brandeis’s theory, and counter-speech doctrine more generally, views competing speakers as setting up a competition of *ideas* not of *volume*. In his Whitney concurrence, Brandeis talked about the power of “discussion” to counter “falsehood and fallacies” through “the processes of education.” The heckling for which Wasserman is apologizing is not discussion; it’s a calculated attempt to squelch discussion. Some degree of heckling may constitute protected speech, but it’s not because of anything Louis Brandeis said or any free speech theory founded on a marketplace of ideas.

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Mar 18, 2022Liked by David Lat

David, I've read your blog for some time now. This piece compelled me to become a paid subscriber. Keep up the excellent work.

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Mar 18, 2022Liked by David Lat

Excellent piece. Count my vote as with you.

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Mar 17, 2022Liked by David Lat

I feel so compelled to let you know how wrong you are that I actually paid money to comment here. LOL!

I am sure you are well versed in Popper’s paradox of tolerance. In general it states that a society should be tolerant of everything except intolerance.

Popper gives parameters of how much intolerance a society should allow:

“I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise.”

I believe your argument is that the people being shouted down at the various Universities fall into the category stated above- that the conservative philosophy is an intellectual one by a side that simply has differing but valid reason for why they believe what they believe and those differing but valid reasons should be respectfully listened to and then debated.

However Popper goes on to define the ideas that should *not* be tolerated:

“ But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.”

I would argue that conservative ideology falls squarely into this category- the one where intolerance is not to be tolerated. Here are just a few reasons why:

1. The ADF is considered to be a hate group by the Southern Poverty Law Center. Their goal is to remove the equal Constitutional protections afforded LGBTQ peoples and render LGBTQ people second class citizens. There is *no rational argument* to support this belief. None. It is as if the KKK was able to come to Yale Law School and discuss why Black people aren’t equal to White people. It is as if their hate is equal to the argument that LGBTQ people are actually people with full Constitutional rights to have sex and get married without being persecuted by the government. Sometimes an argument has been so thoroughly debunked it no longer needs to be discussed, especially when the argument is promoting legal intolerance.

2. The views expressed by the ADF are being used to hurt LGBTQ people right now. Today. Where do you think the abhorrent attack on the parents of trans children in Texas came from? These ideas are no longer just intellectual discussions, they are the foundation of real political policy that is attacking parents and children. When intolerance is so powerful as to do real harm to people, it is no longer equal in regards to what should be politely discussed.

Ergo the intolerance supported by the ADF was rightly not tolerated by the students at Yale.

In regards to your belief that the law students were impolite to the ADF spokesperson and this somehow makes their speech “unacceptable”, I find this opinion to be bizarre. There is no law that says free speech must be presented in a polite manner. If anything the opposite is true. In Cohen v California, the court recognized that freedom of speech protects a person’s right to express those emotions in the manner chosen by the speaker. Ergo shouting, cussing, and chanting are all protected forms of speech.

You state in the article, “Would they want an environment where a majority can ban the teaching of critical race theory, the reading of Toni Morrison novels, or a particular approach to sex education? My guess is no.” I dont understand why you are referring to such things as if they might possibly happen sometime in the far off future. This things are happening right now! And part of the reason is because the only people who actually listen to and know “both sides” *are people on the left”! People on the right aren’t politely listening to liberal arguments as to why LGBTQ people should have equal rights, they are listening to people like Shapiro who strawman liberal arguments and then argue against them in bad faith. THAT is what the students were protesting! And yet somehow you think that it is ok for the right to behave in such an egregious manner, but when college students are fed up with the gaslighting and loudly protest against it, it is somehow worse? In the words of President Obama, “c’mon man”. It is *exactly* what Popper is referring to when he describes the category of intolerance that should never be tolerated, “for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive..”

I will end with my reply to the insane judge that seems to not understand the basics of what freedom of speech is by this quote from J. Patrice:

“Students — as they are not, in fact, the government — absolutely have a free speech right to protest anyone they want and shouting them down is entirely within that right. The speaker is exercising free speech rights… the students are exercising free speech rights. This really shouldn’t be hard to grasp: it’s all free speech.”

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Mar 21, 2022Liked by David Lat

I arrived in New Haven right after Peter Kalis and had classes with or was otherwise exposed to many of the faculty members he mentions. I also had a class with Robert Bork, who was just back from a stint as U.S. Solicitor General. Needless to say, diverse legal, policy and political views were held and there were vigorous, sometimes heated discussions among faculty and students. The discourse was always civil and respectful. I don't recall students shouting down or heckling anyone, in particular official guests of the law school, or directing epithets at them (such as the f and b words used by the protestors in this incident), or anyone displaying their middle finger as reportedly done by the protestors. I am appalled at this conduct and embarrassed for the institution. The lack of civility that has engulfed our politicians and made serious inroads into other sectors of our society is no excuse.

In response to an email I sent to the law school administration expressing concern, I was informed that the University's "three strike" rule had been adhered to because the protestors left the room after the first warning by Professor Stith. The implication was that the protestors were thereby absolved from guilt and any sanctions. Putting aside the issue of whether compliance was actually achieved by their leaving the room but continuing to disrupt this and other contemporaneous events at the law school by making noise from the hallway, it seems to me the protestors clearly violated the university's free speech policy by virtue of their initial disruption of the event and should be disciplined. The three strike rule appears to be merely a procedural one that specifies when disruptive students will be forcibly removed.

I should note that notwithstanding the "nothing to see here" tone of the response (and the like-minded comment of Ms. Scott below), the response I received concluded with the following:

"Needless to say, we expect a great deal more from our students. For that reason, members of [the Law School's] administration are in serious conversation with students about our free speech policies, expectations, and norms." Hopefully the message will be that after one strike you're out and this conduct won't be repeated .

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