The Review

You have probably heard by now about Fifth Circuit appellate Judge Kyle Duncan’s disastrous visit to Stanford Law School, at the invitation of the Federalist Society. If not, check out David Lat’s characteristically comprehensive and even-handed account, which covers both the incident itself and its afterlife as a media event. The short version: Duncan came; he was heckled; he gave as good as he got, which didn’t quiet the hecklers. Tirien Steinbach, Stanford Law’s associate dean for diversity, equity, and inclusion, eventually intervened, but in doing so she expressed fulsome sympathy for the protestors. Duncan then skipped his prepared remarks and moved straight to an adversarial question-and-answer period. Later, Stanford University president Marc Tessier-Lavigne and law-school dean Jenny S. Martinez sent a letter to Duncan apologizing both for the protest itself and for Steinbach’s “inappropriate” handling of it.

Conservative commentators enjoyed themselves. “The law-school rabble evinced learned behavior: No one is born feeling entitled to insult and silence others. Where did the privileged boors learn this?” George Will asked. (His unconvincing answer: too much praise from parents when young.) Liberals like Mark Joseph Stern in Slate and Elie Mystal in The Nation took the conservative glee over the incident as an element in a larger conspiracy. “A Trump Judge’s Tantrum at Stanford Law Was Part of a Bigger Plan,” as the headline to Stern’s essay put it. Mystal spells out the thinking: “The entire escapade sure seems like a set-up. Duncan went into a hostile environment spoiling for a fight, got one, videotaped it, and then ran to his media spokes-buddies to cast himself as a victim.”

Mystal buttresses this speculation with a theory of free speech that justifies the heckler’s veto:

Federalist Society sycophants ... did their old song and dance about free speech (for conservatives, not the protesters) and civility (toward conservatives, not the marginalized people conservatives hate). As is usual, they collapsed the difference between the right to appear at Stanford and the right to force Stanford students to sit there like docile automatons while Duncan held forth. Everybody has the right to speak; nobody has the right to be heard over the din of the crowd. But the conservative echosphere pretends not to understand this distinction.

In fact, as Tessier-Lavigne and Martinez reiterated in their apology to Duncan, invited speakers at Stanford Law do have a right to be heard over the din of the crowd. Nor does Mystal even glance at the obvious objections to his argument (if right-wing protestors shouted down, say, Ruth Bader Ginsburg, would she have a right to be heard over the din of the crowd?) But with a little work, you can extract a semi-coherent theory of free speech from these columns (the Mystal-Stern theory?). It would go something like this: The heckler’s veto is permissible if and only if a speaker has been invited primarily to irritate or provoke, rather than to argue in good faith.

It’d be hard to work out. The difference between argument and mere provocation is problematic. And the motivations behind any given invitation are not transparent, and may be mixed. In any event, law students inviting a federal appellate judge, no matter his opinions, does not strike me as all that analogous to an invitation to, say, Milo Yiannopoulos.

But forget principles. Is it good politics? Let’s say Mystal and company are right — that the invitation was a deliberate act of provocation meant to arouse precisely the response it did arouse from activists. What do the activists achieve by behaving as expected? As Yale Law’s Samuel Moyn tweeted after the Stanford news broke, “The campus left hands another win to the national right — without learning that principle and strategy do not unerringly align.”

Recommended

• “I’m busy doing my science … and then I just stop and cry.” That’s biologist Bonnie Baxter on the disappearance of the Great Salt Lake, in a short video essay by Dane Christensen in Aeon.
• Also in Aeon, an amusing video essay by Evan Puschak on the Earl of Elgin’s pilfering of the Parthenon Marbles.
• “The cat is to Joan Brown as the bull is to Picasso.” In the New York Review of Books, Regina Marler on the Bay Area artist Joan Brown, whose work is the subject of a show at the San Francisco Museum of Modern Art.

Write to me at len.gutkin@chronicle.com.

Yours,

Len Gutkin