Prominent Politicians Condemn The 'Vitriolic Mob' At Yale Law School
But it's a bit rich coming from some of these signatories.
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Yesterday, more than 1,400 people—including two U.S. senators, five governors, nine members of the U.S. House of Representatives, and 24 state attorneys general—sent an open letter to Dean Heather Gerken of Yale Law School. In their letter, which you can view at the Washington Free Beacon (via Aaron Sibarium), the signatories condemned the “vitriolic mob” of protesters who engaged in “physical intimidation and menacing behavior” while attempting to shout down a March 10 event sponsored by the Yale Federalist Society.
I read the letter. I found myself in general agreement with its analysis. I concurred in the requests to Dean Gerken at the end, including the call for her to discipline the protesters—not surprising, since I called last month for such action in my own open letter to Dean Gerken.
And then I got to the signatories of yesterday’s letter. They include Senator Ted Cruz (R-Tex.), Rep. Louie Gohmert (R-Tex.), and Dr. John Eastman. If these three wanted to condemn a “vitriolic mob” that engaged in “physical intimidation and menacing behavior,” maybe they should have started with the January 6 rioters?1
I appreciate how the letter seeks to shine the spotlight on the free-speech problem at Yale Law (and the citation of my reporting on page two). I agree with most of the letter’s content. I recognize that only a handful of the 1,400-plus signatories have any connection to January 6. But having Sen. Cruz, Rep. Gohmert, and Dr. Eastman on this letter is… not a great look. And, if anything, conservative politicos leaning on Dean Gerken in this way makes it less likely for her to take any of the four steps requested at the end of the letter, since disciplining the protesters would look like she was buckling under political pressure.
The letter also runs the risk of turning up the heat on the situation and converting the free-speech problem at Yale Law, a serious and substantive issue, into a political football. I’ve been speaking at a lot of events lately about free-speech problems in the legal academy, and one point I stress in my remarks is that free expression and academic freedom should not be viewed as conservative or right-wing causes. We all benefit from an environment in which people enjoy freedom of thought and speech, on the right and the left. And, by the same token, free speech can be threatened from the right as well as the left (even at Yale, in fact).
People on both the right and the left should be able to agree that last month’s protest violated Yale’s free-speech policy. I have not seen a persuasive argument to the contrary.2 Dean Gerken’s own statement on the protest argued that the policy wasn’t violated because the event wasn’t completely shut down, but by its terms, the policy nowhere requires a total shutdown; it simply requires “disrupt[ion]” and “interfere[nce],” which we definitely saw last month. Indeed, after the publication of my last YLS story, the Foundation for Individual Rights in Education (“FIRE”) posted unredacted audio of the entire event, which confirms significant and long-lasting disruption. FIRE also sent a letter to Yale President Peter Salovey about the protest, which is well worth reading.
For additional argument as to why requiring a total shutdown to trigger the policy makes no sense, consider what Professor Kate Stith—moderator of last month’s event, and no conservative—wrote in a memo that she sent to all tenured faculty at YLS (via Aaron Sibarium of the Washington Free Beacon):
Limiting Yale’s policy to prohibit only “shutting down” events would make no sense. Whether speakers persevere depends in part on how difficult it would be to move the event to a different platform, place, or day. Even more importantly, whether to shut down an event depends on the speakers’ and audience members’ personalities, hearing abilities, and preferences as to which is worse—giving in and stopping the event, or continuing in hard-to-speak/hard-to-hear and uncomfortable circumstances.
It’s worth noting that Professor Stith didn’t call for disciplining the protesters in her letter:
As a former prosecutor, I know well that not every violation has to be an occasion for sanctions. In my judgment we should use this moment as an opportunity to educate our students about the core importance of free expression to our academic mission and to make clear, as Dean Gerken has forcefully written, this can never happen again. That said, we cannot make the most of this opportunity unless we recognize that a blatant violation of Yale’s Free Expression policy occurred on March 10.
Indeed. Whether or not you think the protesters should be disciplined, any lawyer applying the law to the facts in good faith—as Professor Stith did in her memo, and as I did in my open letter—must conclude that the policy was violated. To anyone arguing otherwise, I’d quote Judge Judy: don’t pee on my leg and tell me it’s raining. But again, turning this into a political football, as the letter risks doing, does not help things.
What’s next for Yale Law? In the near term, I fear a repeat of what happened at last month’s protest. This coming Wednesday, April 13, the Yale Federalist Society is hosting the Nathan Hale Symposium, a celebration of the 40th anniversary of the Federalist Society—which got its start at Yale Law back in the spring of 1982. The topic of the Symposium is highly controversial: Dobbs v. Jackson Whole Women’s Health, the case currently pending before the Supreme Court that could overrule Roe v. Wade, and the future of abortion in the United States.3
Fortunately, the speakers are all appearing via Zoom, so none of them will have to put up with what Kristen Waggoner of the Alliance Defending Freedom and Monica Miller of the American Humanist Association had to endure last month. But students will be watching the presentations from Room 127 (the site of last month’s event), there will probably be more actual attendees than the 30 or so who came on March 10, and the subject of abortion generates strong passions on both sides.
Dean Gerken and the YLS administration should consider themselves on notice: the Nathan Hale Symposium has the potential to turn into another free-speech debacle, so please be prepared. And would-be protesters should consider themselves on notice: here is Yale’s free speech policy. Please read it—and if you violate it, be prepared to accept the consequences.4
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I have written at length to criticize Senator Cruz and Professor Eastman in connection with the events of January 6, and I won’t repeat my views here. Instead, I refer you to my two prior posts, The Federalist Society And The Capitol Attack and Trump Derangement Syndrome: 4 Leading Lawyers Who Lost It Defending The Donald.
This post over at Above the Law—which I founded in 2006 but departed from in 2019, which means I haven’t been involved with its content for years—ignores the fact that the protesters, after leaving Room 127, continued to make noise outside the event. This noise disrupted not just the FedSoc panel, but multiple classes and a faculty meeting. The protesters also blocked the hallway of the Sterling Law Building. These actions all violated the Yale free-speech policy.
Various meetings have taken place or will take place at Yale, involving both students and administrators, to discuss protest protocols and related issues. But as Zack Austin, president of the Yale Federalist Society, told Philip Mousavizadeh of the Yale Daily News, FedSoc is not being allowed to send representatives to any of these meetings, even though it would like to participate—and even though it invites more speakers, and more controversial speakers, than pretty much any other organization at YLS.
Whether or not you like FedSoc, it’s clearly a major stakeholder here. And excluding it from these meetings has the potential to encourage FedSoc to be more confrontational and provocative, which I don’t think would be helpful.
My friendly suggestion to would-be protesters of the Nathan Hale Symposium: instead of sending anyone to the Symposium, try holding a competing event at the same time on the same subject, but with speakers espousing pro-choice views.
This would be fully complaint with Yale’s free-speech policy, and it has several other advantages over direct confrontation. First, it won’t disrupt the FedSoc event, so FedSoc members won’t be able to complain about how their free-speech rights were violated. Second, if your event draws more attendees than the FedSoc event, as I suspect it would, it will show that your views enjoy greater support (at least at YLS). Third, your event might actually be educational—and right now Yale Law could use less heat, more light.
[UPDATE (7:26 p.m.): A reader pointed out to me that like many FedSoc events, the Symposium already features speakers with a wide range of views—liberal and conservative, pro-choice and pro-life. But protesters could still hold a “counter-event,” perhaps less scholarly—the Symposium participants are mainly academics—and more personal. For example, they could host an event where women who had abortions talk about it, along the lines of #ShoutYourAbortion.]