A Harbor in the Campus Free Speech Tempest
In Praise of Popehat (a.k.a. Ken White) on the First Amendment at Stanford
March has seen its number of free speech ridiculousness. Recently, a Florida Charter School Principal was fired (or resigned depending on the story) because a group of parents were upset the art class included a depiction of Michelangelo’s “David,” often celebrated as the greatest sculpture of all time, which the parents portrayed as pornographic.
If this all seems like it could have been cobbled together by the laziest television writers in history and made into some Simpsons episode, it’s because it actually WAS a Simpson’s Episode—from it’s second season nearly 33 years ago, way back in 1990!
This is only one example this month. The biggest and most interesting one related to a Fifth Circuit Appellate Judge speaking at Stanford University and summarily being shut down by hecklers and protesters. When he appealed to an administrator from Stanford to step in, the administrator spoke out— on behalf of the protesters.
The whole ordeal was a firestorm on twitter with the CRT/DEI crowd taking up the cause of the protesters, and the Right Wing/Federalist Society/ Lunatic Fringe MAGAts taking up the side of the Judge.
Which is what brings us to Popehat. To the uninitiated, Popehat is Ken White, a criminal defense attorney and civil rights attorney based in L.A. He has the outstanding, unrivaled habit of cutting through a lot of the B.S. on both sides of an issue and clearly stating what the law is, what should happen and why. Its what made him such a treasure on Twitter when big issues appeared, and why after he left Twitter why his substack (“The Popehat Report”) is must reading for people wanting to understand major First Amendment issues.
In a post titled “Hating Everyone Everywhere All at Once at Stanford,” he lays it all out there why NONE Of the people involved in this whole ordeal is really worth supporting.
Let’s start with his view on the Judge:
No doubt Judge Duncan is smart, but he didn’t get to be a federal judge by being unusually smart, or an unusually good lawyer. President Trump appointed him because he was a young, aggressive, telegenic anti-gay and anti-progressive activist. Kyle Duncan the lawyer was a culture warrior, and appointing him was a salvo in the war. Judge Kyle Duncan is more of the same. He’s known for things like monologuing in self-congratulatory fashion about why he won't address an incarcerated litigant by their preferred pronouns. This, plus the odd attempt to overthrow the government, is what passes for courage and principle in the 21st-century Federalist Society and for judicial restraint on the Fifth Circuit. Oh, bravely done, Judge Duncan, no doubt: you put that woke trans prisoner in her place.
Next up, the Federalist Society:
This led the Stanford Federalist Society to invite Judge Duncan to speak to them. The Stanford FedSoc — perhaps still reeling from the unspeakable injustice of being lightly mocked -- wanted a headliner. What kind of headliners get invited to FedSoc events? There are two kinds. There are super-brilliant people who are on the cutting edge of important issues, and there are elbow-throwing clownholes. Judge Duncan isn’t dumb but he’s not Learned Hand and his jurisprudence didn’t get him invited to Stanford. He got invited because he was, and remains, a culture warrior. He got invited because he’s controversial. His invitation was a statement by FedSoc members to fellow students and America. If you’re feeling charitable the statement was “we defy groupthink and dare to consider unpopular ideas and modern blasphemies.” If you’re feeling uncharitable — or, in my view, realistic — the message was “lol, fuck you.” The FedSoc members didn’t think “Judge Duncan explains Colorado River abstention better than anyone and we need to hear from him.” The FedSoc members thought “Judge Duncan put that pronoun freak in its place and inviting him will own the libs.”
So of course, this kind of speaker was going to court controversy. He’s a typical right wing troll, given a level of authority, invited by a group who likes to troll, to speak on a campus where the bulk of the students are the exact type of people this group likes to troll. It didn’t take a genius to figure out there would be protests. However, the thing is that until recently, invited speakers were usually accorded the ability to, you know, actually speak. Protests happen outside, or pointed questions occurred at a Q and A common at these events after the speakers’ stated remarks. What happened here was an affront to free speech.
Ken White Again:
Stanford students set out to protest the deliberately provocative invitation of Judge Duncan. They started great, modeling the variety of means available to them. They put up fliers denouncing Judge Duncan and FedSoc, they led a vigorous protest in the halls, they arrived at the speech with suitably blunt signs about Judge Duncan. …The protesting students’ rights and interests are neither inferior to nor superior to the interests of the FedSoc and Judge Duncan. Policing the civility of the response to speech and not speech itself is incoherent nonsense. Put another way, if you say “fuck you” to your classmates, they may say “fuck you” back. If you set out to provoke a response, put on your big boy pants when you get one.
But that wasn’t enough for students. “Assholes have a right to speak” is not a universal value and never has been. Stanford students attempted to shout Judge Duncan down and prevent him from speaking and his willing audience from listening… the student protester attitude is often "you're goddamned right we shouted that asshole down." Conservatives, on the other hand, will try to portray the students as a violent mob, which isn’t right either.
It went worse from there. Judge Duncan engaged in a “dialogue” with students characterized by petulance and unseriousness, both exchanging insults with protestors and treating even legitimate (if pointed) questions as insults. Look, if protesters are yelling insults at you, you don’t have to talk to any of them. But you don’t get to pose as the icon of civilized discourse and get into an insult-match with them. Pick a lane.
This is where Stanford Aministrators stepped in (or I should say, stepped in it):
Stanford, institutionally, made it much worse, sending an associate dean to do a grown-up’s job. Tirien Steinbach, Associate Dean for Diversity, Equity & Inclusion, indulged in a colloquy that more or less challenged the entire concept of universities tolerating speech that some people don't like. Steinbach, though ultimately and reluctantly asking students to let Judge Duncan speak, articulated the modern view that if some people assert your words and actions have been harmful, then maybe you shouldn’t speak on any topic.
Ugh. Where to begin. She was not there to defend the invited speaker nor represent the institution, nor even the idea of speech, diverse viewpoints, and learning through understanding of all points of an issue; she was there to side with those protesting a speaker with whom they (and she) disagreed. This is inconsistent with the intentions of universities and higher learning, and Stanford’s stated speakers policy.
Most writers would pick a side on this topic and Ken’s is clearly on the side of the First Amendment and the ability of the Judge, no matter how loathsome, to speak. But Popehat did something even better; rather than defend the Judge from the protests he believe went too far, he flatly layed out why choosing First Amendment Heros itself is an unwise choice, comparing the Judge to a group of Nazis who wanted to march in Skokie, IL, and setting a benchmark in First Amendment law1:
When people’s First Amendment rights are on the line, we don’t ask whether they sincerely support free speech before protecting them. Only fools or dupes imagined that the Nazis marching at Skokie would have instituted a society characterized by broad free speech rights if they had their way. Rights protect awful totalitarian people all the time. There are many philosophical reasons for this; one is the recognition that we can’t be trusted to decide who should or shouldn’t get rights, and that arrogating such power to ourselves will inevitably favor the powerful and popular over the powerless and unpopular.
That’s why the whole notion of “free speech heroes” is dicey. Plenty of people who stand up for their own free speech rights would cheerfully infringe on the rights of others given a chance. Professors who are fighting unjust investigations sue students on bogus defamation theories. Supposed champions of the First Amendment become eager professional censors. We all constantly struggle against the tide of the instinctual human position “speech I like should be protected and speech I hate should be punished.” But we like simple stories, and we like heroes, so when someone’s speech is wrongly suppressed, we battle a cultural inclination to make them into noble, admirable victims.
Usually they’re not, and wanting them to be heroic clouds our thinking.
I don’t care who you are, being held up on par with Nazis as an icon for Free Speech is no good look for anyone, especially an Appellate Judge. On a matter in which there was nobody who looked good, Ken White was golden.
On Friday, the Stanford Administration did their best to rectify the whole ordeal and apologize to Judge Duncan, a course of action that drew protests, performative outrage and disdain in itself. In a subsequent post, Popehat summarized in great detail why the Dean’s apology to Judge Duncan was the right thing to do and how the written apology perfectly describes the right approach. You can find the whole post below, but the pertinent text from the Dean’s apology is here:
The Federalist Society has the same rights of free association that other student organizations at the law school have. Students calling for the law school administration to restrict the organization or the speakers it can bring to campus are demanding action inconsistent not only with freedom of speech but with rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure…Some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school.
We’ve seen some overreaction the past few years related to student oversensitivity on campus. An example was a Hamline Adjunct Professor fired for showing a depiction of Mohammed in an art class, which she prefaced, warned, provied ample opportunity for students to protest or skip the class for religious reasons.
https://apnews.com/article/education-colleges-and-universities-minnesota-middle-east-religion-e39841dd59ea2647a6019b4ba669bfe5
When the student took part in the class, he immediately complained and Hamline fired her. There’s not much more she could have done further to warn of potential offense, and the administration was overreactive to the complaints, but feared lawsuits. So what is to be done?
Well, as Stanfords Dean Martinez and Popehat pointed out, the key to learning and wisdom is to allow/listen to competing viewpoints, learn from them that which is useful and enlightening, and move on.
PurpleAmerica’s Recommended Stories
As I mentioned, Ken White is outstanding to read. He writes primarily on First Amendment issues and in today’s world, there are a lot of them. I’m going to repost the two Substack links here, because they really should be read.
First, “Hating Everyone Everywhere, All At Once At Stanford.”
Next, “Stanford Law Responds Appropriately, if Belatedly, to Judge Duncan Fiasco
And just for kicks, here is another one for fun, so you can get a sense of what kind of posts he usually writes.
Can a Tarot Card Reading be Defamatory, Part II, The Taroting.
Enjoy.
PurpleAmerica’s Obscure Fact of the Day
For those genuinely curious, the name for the Pope’s Hat is a “Mitre.”
PurpleAmerica’s Cultural Corner
So for any fan of the film The Goonies, there is a great part regarding a miniaturized replica of David that seems relevant to the issues of the past week…
PurpleAmerica’s Outstanding Tweets
There have been a lot of hilarious tweets about the Tallahassee school’s decision on the statue of David. One showed a couple with the post “Thank God we didn’t see that statue of David, so pornographic. I mean, can you imagine seeing a big penis in a museum?” The joke was they were literally standing behind the famed statue with a picture of David’s butt taking up half the frame of the shot. It was hilarious but then I couldn’t find it and suspect it may have been taken down.
However, here’s my favorite, strictly because EVERYONE, including the Church believes Michelangelo’s David is, to put it lightly, a “great work of art.”:
Footnotes and Parting Thoughts
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National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).