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.
In 1972, Yale had been allowing females for only four years. Four. Years.
It’s very easy to be respectful when everyone comes from a similar background and the opposing views are with in a few points of agreement.
You are correct when you say there is deeply rooted intolerance in much of the American academy. That intolerance is a reflection of the intolerance that has been the foundation of the United States and ceased to be shameful during the Trump Presidency.
As I mentioned in my original comment and you poo-poo’d, tolerating intolerance is what leads to the destruction of democracy and liberty in free societies.
Bill Clinton, Hillary Rodham, Sam Alito, Rob Reich, Clarence Thomas, Dick Blumenthal et al were able to politely debate because they weren’t confronted with anyone who wildly objected to their positions. They were people of privilege, except maybe Thomas who unfortunately learned exactly the wrong lessons from his time at Yale. From what I have read, he didn’t have much to say anyway.
You seem to think that today’s Yale Law is unlikely to be part of the solution to the disgusting intolerance being celebrated on the right. You are probably correct. But that kind of intolerance shouldn’t be celebrated or supported in any way.
The good news is, as we have seen, intolerance of intolerance is exactly the way to expunge the cancer of bigotry that has defined the right for decades. It is exactly what Popper suggested when he wrote, The Open Society and Its Enemies, and how to protect it from the intolerance of the right.
And even better is the fact that Yale law and its rivals are quickly becoming obsolete as the elitism that has defined and protected higher law is being usurped by other equally, but less elitist higher learning centers; for it never should have been up to one school to be the bastion of legal thought.
It is only when those who have been systematically oppressed by our legal system have the ability to make change within the system that true Liberty is achieved. I am thrilled that the current Yale law students are supporting those who are being oppressed by the like of FedSoc and using their privilege to protest against the totalitarianism being perpetrated by the right.
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.
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.
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.”
Also, regarding the "it's all free speech" argument, I think it's a dangerous view—for the reasons I give in my post. Whenever you go to a "might makes right" regime, the right usually wins.
Today the left might say, "Yay, we shouted down Ilya Shapiro!" But they'll be less pleased tomorrow, when they get shouted down by pro-lifers, pro-gun-rights folks, anti-CRT parents, and the like.
When shouting at someone is no more than a vehicle to get your way by force, calling it "free speech" is like calling the firehoses aimed at the Birmingham protestors "free water": it intentionally obscures how power is being exercised.
You can approve of the exercise of power by the crowd here or disapprove of it, but mislabeling it will not help.
Thank you for subscribing. And thank you for your long, thoughtful comment, which I appreciate.
Peter Kalis basically said what I was going to say: the intolerant folks here are the protesters who attempted to shout down the speakers. You can't have a system of discourse where some participants don't respect the rights of others to participate—which is why the intolerant can't be tolerated.
As a gay husband and dad, I'm obviously troubled by ADF's stances on same-sex marriage and parenting. But I'm not going to shout down ADF speakers; I respect their right to free speech. Instead, I'll explain why they're wrong on LGBTQ issues. (I would note, though, that this event had nothing to do with LGBTQ issues; it was about a free speech case where the ADF was on the same side as the ACLU.)
Also, FWIW, I'm not afraid of folks like ADF and Waggoner. The ship sailed long ago on issues like marriage equality—and it's not coming back. I agree with Martin Luther King Jr.: "the arc of the moral universe is long, but it bends toward justice."
I think both you and Kalis argument is fundamentally flawed by one thing: the right does not support a liberal democracy. Their beliefs are founded in supremacy, which is why they are unable to argue in good faith.
Popper absolutely would have supported the free speech rights of the students to protest the evils perpetrated by the ADF because it is exactly what he said was worthy of intolerance. Yes, the students were being intolerant, because they were being intolerant of intolerance! That is my entire argument! You cant have a system of discourse where some of the participants not only dont respect the rights of others, their argument is to prevent or take away the Constitutional rights of others- which is exactly what the ADF and Shapiro supports!
As for the ship sailing on marriage equality and it not coming back, I too believed the same thing in regards to abortion, a ruling that is far older than Obergefell, and yet right now women in Texas are not able to legally get an abortion in their own state, and there are other states scrambling to ban abortion AND create legal punishments for the women who travel out of their state to get an abortion. We are talking about millions of women right now who do not have the same Constitutional rights as everyone else in the United States, and yet you think the ADF isn’t coming for your marriage?!
Toleration of free speech should be wide and it should be robust and it should stimulate and support the debate of ideas, even ones that are ridiculous or based on faith instead of facts. But tolerance of free speech ends when the speech is used to take away rights and subjugate other people’s liberties. Because when intolerance is equal to tolerance, and debated as if it was simply a differing opinion as opposed to an attack on people’s humanity, that is when the intolerant win. That is what happened in Nazi, Germany. That is why abortion is no longer legal in Texas. That is why books are being banned, the teaching of history through the lens of race is being banned, and the 1A is being used as a cudgel to make it legal to discriminate against LGBTQ people.
I too agree with Martin Luther King Jr, “
“Our lives begin to end the day we become silent about things that matter.”
"or 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."
It is just plain crazy to say that the Alliance Defending Freedom "denounced all argument" or "forbids their followers to listen to rational argument' or advocates "answernig arguments by the use of fists and pistols".
The ADF is a legal assistance organization, and in this case it was precisely there to make rational arguments, in a debate with an opposing side.
I haven't read Popper(tho I will), but I bet what he was saying was that there was a case for outlawing the Communist Party and the Nazi Party, as the US did with the Communists (tho that was ruled unconstitutional, I think) and West Germany did with the Nazis (which is still in force, I think). In fact, Popper is making an argument to outlaw *your* view, Bethany, and ANTIFA.
Speech rights ending when "speech is used to take away rights and subjugate other people's liberties" seems like a pretty unworkable standard. For example, one would have to engage in some pretty serious mental gymnastics to argue that the state of Colorado and the gay couple(s) looking to buy a wedding cake are not trying to take away the rights and subjugate the liberties of Jack Phillips. Should the gay couples be silenced?
Or, of course, from a certain perspective legalized abortion certainly takes away a lot of rights and liberties from (potential, YMMV) people.
First of all, you completely strawmanned my argument. I never said anyone’s speech rights should be taken away. I said the students were doing the right thing when they were *intolerant* of the speaker’s views.
Tolerant means to allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference. I agree that one should tolerate others differing opinions and actions 99% of the time. The *only* time one should interfere with them is when their differing opinions and actions are supporting the intolerance of others, which is exactly what the ADF advocates.
Ergo the students were doing the right thing by speaking out against her and what she represents. Their *intolerance* of intolerance is both necessary and just.
In addition, nobody’s rights were taken away. Both the students and the ADF representative were able to speak because even though the police were there, they didn’t stop anyone from speaking, *which is exactly the way its supposed to be*. And yet all I see is a lot of pearl clutching from conservatives about the *students behavior* instead of what should be happening which is that this is a perfect example of the First Amendment Free Speech in action! The entire interaction should be celebrated! Instead, that judge wants to blackball students because they weren’t polite to an ADF speaker? It’s bizarre.
In regards to the baker, I’ll let someone much more eloquent speak for me:
“Phillips’s claim that his religious freedom would be compromised by being forced to engage in his own business is ludicrous on its face. Refusing to do your job because the person paying you to do it has different beliefs than you is not a religious objection, it’s plain and simple bigotry.” -E. Mystal
As for abortion, we have the 14th Amendment which states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
No rights are taken away from a fetus because a fetus is not a born person. But women *are* born people, and therefore constitutionally protected to having equal protection under the law. There are no laws that restrict men from any medical procedure or medication based on how it will affect another person. None. Therefore any legal medical restrictions placed on women are not constitutional. Just as men have full rights to make any choice they like in regards to medical decisions for their bodies without interference from the government so too do women have full rights to make any choice they like in regards to their medical decisions for their bodies without interference from the government.
So if I understand your framework correctly, any advocacy for a view of Constitutional rights that is more limited or restrictive than what you prefer should not be "tolerated", meaning at a minimum, such views should be shouted down when voiced in a public forum. That seems a rather silly approach to ground rules for public dialogue surrounding disputed issues of constitutional interpretation.
I trust that you’re not invoking Karl Popper, a great 20th Century champion of liberal democracy, to justify what happened at Yale Law School. Perhaps it’s another Popper of whom I’ve never heard. We had a neighbor named Sam Popper when I was a kid. My friends and I lived in great fear of that old guy when we were in his presence. We lowered our voices to a whisper so he wouldn’t scream at us. Yes, it must be Sam Popper because Karl Popper would be appalled at what transpired and YLS.
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 .
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.
In 1972, Yale had been allowing females for only four years. Four. Years.
It’s very easy to be respectful when everyone comes from a similar background and the opposing views are with in a few points of agreement.
You are correct when you say there is deeply rooted intolerance in much of the American academy. That intolerance is a reflection of the intolerance that has been the foundation of the United States and ceased to be shameful during the Trump Presidency.
As I mentioned in my original comment and you poo-poo’d, tolerating intolerance is what leads to the destruction of democracy and liberty in free societies.
Bill Clinton, Hillary Rodham, Sam Alito, Rob Reich, Clarence Thomas, Dick Blumenthal et al were able to politely debate because they weren’t confronted with anyone who wildly objected to their positions. They were people of privilege, except maybe Thomas who unfortunately learned exactly the wrong lessons from his time at Yale. From what I have read, he didn’t have much to say anyway.
You seem to think that today’s Yale Law is unlikely to be part of the solution to the disgusting intolerance being celebrated on the right. You are probably correct. But that kind of intolerance shouldn’t be celebrated or supported in any way.
The good news is, as we have seen, intolerance of intolerance is exactly the way to expunge the cancer of bigotry that has defined the right for decades. It is exactly what Popper suggested when he wrote, The Open Society and Its Enemies, and how to protect it from the intolerance of the right.
And even better is the fact that Yale law and its rivals are quickly becoming obsolete as the elitism that has defined and protected higher law is being usurped by other equally, but less elitist higher learning centers; for it never should have been up to one school to be the bastion of legal thought.
It is only when those who have been systematically oppressed by our legal system have the ability to make change within the system that true Liberty is achieved. I am thrilled that the current Yale law students are supporting those who are being oppressed by the like of FedSoc and using their privilege to protest against the totalitarianism being perpetrated by the right.
Bethany Scott, I quote you at length in draft op-ed. Comments welcomed. https://docs.google.com/document/d/1fLIi6vC9tE-5Dkad3oOWg1IHnZp73BVGcepTr-_tJlo/edit
Nice torching of Scott's position.
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.
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.
Thanks! This thread responds to Mark's account (and collects all the audio and video evidence that I'm aware of):
https://twitter.com/DavidLat/status/1504841221772034058
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.
David, I've read your blog for some time now. This piece compelled me to become a paid subscriber. Keep up the excellent work.
Thanks for your support, Christian! (And also for the data point; it's always interesting to me what gets folks to convert from free to paid.)
Excellent piece. Count my vote as with you.
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.”
Also, regarding the "it's all free speech" argument, I think it's a dangerous view—for the reasons I give in my post. Whenever you go to a "might makes right" regime, the right usually wins.
Today the left might say, "Yay, we shouted down Ilya Shapiro!" But they'll be less pleased tomorrow, when they get shouted down by pro-lifers, pro-gun-rights folks, anti-CRT parents, and the like.
When shouting at someone is no more than a vehicle to get your way by force, calling it "free speech" is like calling the firehoses aimed at the Birmingham protestors "free water": it intentionally obscures how power is being exercised.
You can approve of the exercise of power by the crowd here or disapprove of it, but mislabeling it will not help.
Thank you for subscribing. And thank you for your long, thoughtful comment, which I appreciate.
Peter Kalis basically said what I was going to say: the intolerant folks here are the protesters who attempted to shout down the speakers. You can't have a system of discourse where some participants don't respect the rights of others to participate—which is why the intolerant can't be tolerated.
As a gay husband and dad, I'm obviously troubled by ADF's stances on same-sex marriage and parenting. But I'm not going to shout down ADF speakers; I respect their right to free speech. Instead, I'll explain why they're wrong on LGBTQ issues. (I would note, though, that this event had nothing to do with LGBTQ issues; it was about a free speech case where the ADF was on the same side as the ACLU.)
Also, FWIW, I'm not afraid of folks like ADF and Waggoner. The ship sailed long ago on issues like marriage equality—and it's not coming back. I agree with Martin Luther King Jr.: "the arc of the moral universe is long, but it bends toward justice."
I think both you and Kalis argument is fundamentally flawed by one thing: the right does not support a liberal democracy. Their beliefs are founded in supremacy, which is why they are unable to argue in good faith.
Popper absolutely would have supported the free speech rights of the students to protest the evils perpetrated by the ADF because it is exactly what he said was worthy of intolerance. Yes, the students were being intolerant, because they were being intolerant of intolerance! That is my entire argument! You cant have a system of discourse where some of the participants not only dont respect the rights of others, their argument is to prevent or take away the Constitutional rights of others- which is exactly what the ADF and Shapiro supports!
As for the ship sailing on marriage equality and it not coming back, I too believed the same thing in regards to abortion, a ruling that is far older than Obergefell, and yet right now women in Texas are not able to legally get an abortion in their own state, and there are other states scrambling to ban abortion AND create legal punishments for the women who travel out of their state to get an abortion. We are talking about millions of women right now who do not have the same Constitutional rights as everyone else in the United States, and yet you think the ADF isn’t coming for your marriage?!
Toleration of free speech should be wide and it should be robust and it should stimulate and support the debate of ideas, even ones that are ridiculous or based on faith instead of facts. But tolerance of free speech ends when the speech is used to take away rights and subjugate other people’s liberties. Because when intolerance is equal to tolerance, and debated as if it was simply a differing opinion as opposed to an attack on people’s humanity, that is when the intolerant win. That is what happened in Nazi, Germany. That is why abortion is no longer legal in Texas. That is why books are being banned, the teaching of history through the lens of race is being banned, and the 1A is being used as a cudgel to make it legal to discriminate against LGBTQ people.
I too agree with Martin Luther King Jr, “
“Our lives begin to end the day we become silent about things that matter.”
Bethany Scott, you quoted Popper as saying,
"or 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."
It is just plain crazy to say that the Alliance Defending Freedom "denounced all argument" or "forbids their followers to listen to rational argument' or advocates "answernig arguments by the use of fists and pistols".
The ADF is a legal assistance organization, and in this case it was precisely there to make rational arguments, in a debate with an opposing side.
I haven't read Popper(tho I will), but I bet what he was saying was that there was a case for outlawing the Communist Party and the Nazi Party, as the US did with the Communists (tho that was ruled unconstitutional, I think) and West Germany did with the Nazis (which is still in force, I think). In fact, Popper is making an argument to outlaw *your* view, Bethany, and ANTIFA.
Speech rights ending when "speech is used to take away rights and subjugate other people's liberties" seems like a pretty unworkable standard. For example, one would have to engage in some pretty serious mental gymnastics to argue that the state of Colorado and the gay couple(s) looking to buy a wedding cake are not trying to take away the rights and subjugate the liberties of Jack Phillips. Should the gay couples be silenced?
Or, of course, from a certain perspective legalized abortion certainly takes away a lot of rights and liberties from (potential, YMMV) people.
First of all, you completely strawmanned my argument. I never said anyone’s speech rights should be taken away. I said the students were doing the right thing when they were *intolerant* of the speaker’s views.
Tolerant means to allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference. I agree that one should tolerate others differing opinions and actions 99% of the time. The *only* time one should interfere with them is when their differing opinions and actions are supporting the intolerance of others, which is exactly what the ADF advocates.
Ergo the students were doing the right thing by speaking out against her and what she represents. Their *intolerance* of intolerance is both necessary and just.
In addition, nobody’s rights were taken away. Both the students and the ADF representative were able to speak because even though the police were there, they didn’t stop anyone from speaking, *which is exactly the way its supposed to be*. And yet all I see is a lot of pearl clutching from conservatives about the *students behavior* instead of what should be happening which is that this is a perfect example of the First Amendment Free Speech in action! The entire interaction should be celebrated! Instead, that judge wants to blackball students because they weren’t polite to an ADF speaker? It’s bizarre.
In regards to the baker, I’ll let someone much more eloquent speak for me:
“Phillips’s claim that his religious freedom would be compromised by being forced to engage in his own business is ludicrous on its face. Refusing to do your job because the person paying you to do it has different beliefs than you is not a religious objection, it’s plain and simple bigotry.” -E. Mystal
As for abortion, we have the 14th Amendment which states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
No rights are taken away from a fetus because a fetus is not a born person. But women *are* born people, and therefore constitutionally protected to having equal protection under the law. There are no laws that restrict men from any medical procedure or medication based on how it will affect another person. None. Therefore any legal medical restrictions placed on women are not constitutional. Just as men have full rights to make any choice they like in regards to medical decisions for their bodies without interference from the government so too do women have full rights to make any choice they like in regards to their medical decisions for their bodies without interference from the government.
So if I understand your framework correctly, any advocacy for a view of Constitutional rights that is more limited or restrictive than what you prefer should not be "tolerated", meaning at a minimum, such views should be shouted down when voiced in a public forum. That seems a rather silly approach to ground rules for public dialogue surrounding disputed issues of constitutional interpretation.
I trust that you’re not invoking Karl Popper, a great 20th Century champion of liberal democracy, to justify what happened at Yale Law School. Perhaps it’s another Popper of whom I’ve never heard. We had a neighbor named Sam Popper when I was a kid. My friends and I lived in great fear of that old guy when we were in his presence. We lowered our voices to a whisper so he wouldn’t scream at us. Yes, it must be Sam Popper because Karl Popper would be appalled at what transpired and YLS.
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 .