On March 9, student protesters—many of whom sought to draw attention to LGBTQ+ rights in the current legal environment—disrupted U.S. Circuit Judge Kyle Duncan’s talk “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter” at a student Federalist Society event at Stanford Law School. “There were easily a hundred students in the room,” wrote dean Jenny Martinez in a memo to the Law School community following the event. “Some individual students crossed the line into disruptive heckling while others engaged in constitutionally protected nondisruptive protest, such as holding signs or asking pointed questions.”
Martinez outlined the steps the school will take, which include mandatory education for students about free speech and the norms of the legal profession as well as training for staff on how to uphold the university’s policy on campus disruption. “The failure by administrators in the room to timely administer clear and specific warnings and instead to send conflicting signals about whether what was happening was acceptable or not (and indeed at one point to seemingly endorse the disruptions that had occurred up to that point by saying ‘I look out and say I’m glad this is going on here’) is part of what created the problem in the room,” she wrote.
In the excerpt below, Martinez explains why the policy on campus disruption is consistent with free-speech jurisprudence and with academic freedom, how the university can think about its own rights and obligations as a speaker, and how principles of diversity, equity, and inclusion necessitate protecting the expression of all views.
Photo: Timothy Archibald
Academic Freedom, Free Speech, and Protests on University Campuses: Protest Is Allowed but Disruption Is Not Allowed
My response is informed by basic principles. First, Stanford’s Statement on Academic Freedom adopted by the Faculty Senate in 1974 provides:
Stanford University’s central functions of teaching, learning, research, and scholarship depend upon an atmosphere in which freedom of inquiry, thought, expression, publication, and peaceable assembly are given the fullest protection. Expression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.
Second, while the First Amendment is designed to protect speech from government restriction, and therefore is not directly applicable to Stanford as a private institution, California’s Leonard Law prohibits private colleges from making or enforcing rules subjecting students to discipline on the basis of speech that would be protected by the First Amendment or California Constitution if regulated by a public university. Some students have argued that the disruptive protest of the event was itself constitutionally protected speech. Of course, protests are in some instances protected by the First Amendment, but the First Amendment does not give protesters a “heckler’s veto.” As First Amendment scholar [and Berkeley Law] dean Erwin Chemerinsky [and UC Irvine chancellor Howard Gillman, cochairs of the national advisory board of the University of California National Center for Free Speech and Civic Engagement wrote last year in the Washington Post], “Freedom of speech does not protect a right to shout down others so they cannot be heard.”
To the contrary, settled First Amendment law allows many governmental restrictions on heckling to preserve the countervailing interest in free speech. As the California Supreme Court stated in 1970 in In re Kay, “the state retains a legitimate concern in ensuring that some individuals’ unruly assertion of their rights of free expression does not imperil other citizens’ rights of free association and discussion.” Even in public forums such as public streets, sidewalks, and parks, where free speech rights have greatest latitude, it is well-settled that the First Amendment allows the imposition of reasonable content-neutral time, place, and manner restrictions.
And while the First Amendment bars regulation of speech on the ground that listeners might find its content disturbing, it permits the regulation of speech that “substantially impairs the effective conduct of a meeting.”
‘Some of the protesters at [the March 9] event stayed within the bounds of permissible, nondisruptive counter-speech, while others crossed the line in sustained heckling that disrupted the event.’
For these reasons, modern First Amendment law does not treat every setting as a public forum where a speech free-for-all is allowed. To the contrary, First Amendment cases have long recognized that some settings are “limited public forums,” where restrictions on speech are constitutional so long as they are viewpoint-neutral and reasonable in light of the forum’s function and all the surrounding circumstances. As Justice [Ruth Bader] Ginsburg cautioned in a prominent case, such speech restrictions may be especially reasonable “in the educational context,” which requires “appropriate regard for school administrators’ judgment” in preserving a university’s mission and advancing academic values. A university classroom setting for a guest speaker invited by a student organization is thus a setting where the First Amendment tolerates greater limitations on speech than it would in a traditional public forum.
In such a setting, limiting audience participation to signs, questions during a planned Q&A, and a nondisruptive level of audience reaction is appropriate to the nature of the forum. Stanford’s event disruption policy gives attendees a right to hold signs and to demonstrate disagreement in other ways as long as the methods used do not “prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies . . . and public events.” Moreover, students are encouraged to hold alternative events where they can share their own views without disrupting the invited speaker. Stanford’s policy is thus fully consistent with the First Amendment and long-settled California constitutional law.
Moreover, a university is not just a platform for speech but is itself a speaker with its own First Amendment rights and prerogatives to edit the message it conveys to its students and the world, including messages about the importance of free speech. A university’s free speech and campus disruption policy is an important component of such academic freedom. Some of the protesters at [the March 9] event stayed within the bounds of permissible, nondisruptive counter-speech, while others crossed the line in sustained heckling that disrupted the event. Some students contend that the judge invited the heckling with offensive comments or engagement with protesters. These arguments misunderstand the nature of the disruption policy. The policy would not be meaningful to protect the carrying out of public events and the right of attendees to hear what is said if it applied only when a speaker said things protesters in an audience found agreeable. Nor does the fact that the speaker departs from their planned remarks and engages with the hecklers justify further heckling that disrupts the event.
The president of the university and I have apologized to Judge Duncan for a very simple reason—to acknowledge that his speech was disrupted in ways that undermined his ability to deliver the remarks he wanted to give to audience members who wanted to hear them, as a result of the failure to ensure that the university’s disruption policies were followed. That apology, and the policy it defends, is fully consistent with the First Amendment and the Leonard Law.
Academic Freedom, Free Speech, DEI, and the Role of University Administrators
The university’s commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.
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 20th century to secure. To do so would also be inconsistent with the Stanford Statement on Academic Freedom’s requirement that “[e]xpression of the widest range of viewpoints should be encouraged, free from institutional orthodoxy and from internal or external coercion.” Unless we recognize that student members of the Federalist Society and other conservatives have the same right to express their views free of coercion, we cannot live up to this commitment nor can we claim that we are fostering an inclusive environment for all students.
The 1967 Kalven Report of the University of Chicago is not formal policy at Stanford but helps explain why university administrators should avoid exercising their authority in ways that can chill speech. It states:
A university has a great and unique role to play in fostering the development of social and political values in a society. The role is defined by the distinctive mission of the university and defined too by the distinctive characteristics of the university as a community. It is a role for the long term.
The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and by effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic. It is, to go back once again to the classic phrase, a community of scholars. To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community.
It bears emphasizing that it is not inconsistent with principles of academic freedom for the university administration to say that our LGBTQ+ students, faculty, and staff are valued members of our community of scholars. That goes to the basic norms of pluralism that under-pin our operation as a university, in the same structural way that the normative commitment to free speech underpins those operations. Indeed, as the Stanford Faculty Senate reaffirmed in a resolution adopted on November 11, 2016, the university has a commitment to an “open and inclusive community that embraces all members, irrespective of race, ethnicity, religion, gender, gender identity, sexual orientation, citizenship, abilities, and political views.” And so I say that firmly here as well, and defend the value and place of LGBTQ+ people in our community.
‘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 that position is incompatible with the training that must be delivered in a law school.’
Moreover, there are many ways to support diversity, equity, and inclusion that are not inconsistent with a commitment to academic freedom. For example, as an educational institution dedicated to training future lawyers, we support diversity, equity, and inclusion by encouraging thoughtful and critical discourse about the law and legal system, by training students to offer substantive critiques of injustice that they encounter, by teaching future lawyers how to marshal evidence that supports their point of view and how to make arguments that convince others. We support diversity, equity, and inclusion when we encourage people in our community to reconsider their own assumptions and potential biases. We support diversity, equity, and inclusion when we encourage students to connect with and see one another as people. We support diversity, equity, and inclusion when we teach each and every one of our students how to be the best possible lawyer they can be and take those skills of advocacy out into the world.
At the same time, I want to set expectations clearly going forward: Our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with which some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an “inclusive” environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues. 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.
Law is a mediating device for difference. It therefore reflects all the heat of controversy, all the pain and suffering, and all the deeply felt moral urgency of our differences in position, power, and cherished principles. Lively, candid, civil, and evidence-based discourse in disagreement is not just positive for our community, constituted as it is in difference, it is a professional duty. Observance of this duty matters most, not least, when we are convinced that others haven’t.
There are fundamental issues to consider here beyond the issues of formal law and university policy. They have to do with choices for which all of us are responsible in building a community dedicated to learning and to preparation for the practice of law. The cycle of degenerating discourse won’t stop if we insist that people we disagree with must first behave the way we want them to. Nor will it stop if we try to shame each other into submission (shaming, the research shows, has precisely the opposite effect in communities constituted by difference). The cycle stops when we recognize our responsibility to treat each other with the dignity with which we expect to be met. It stops when we choose to replace condemnation with curiosity, invective with inquiry. I remain dedicated to cultivating these norms in our community.
There is temptation to a system in which people holding views perceived by some as harmful or offensive are not allowed to speak, to avoid giving legitimacy to their views or upsetting members of the community, but history teaches us that this is a temptation to be avoided. I can think of no circumstance in which giving those in authority the right to decide what is and is not acceptable content for speech has ended well. Indeed, the power to suppress speech is often very quickly directed towards suppressing the views of marginalized groups. We see this today, both around the United States and around the globe. And at key moments in history, robust protection for the rights of association and speech has been critical to the advance of social movements for historically marginalized groups. Thus, I believe that strong protection for freedom of speech is a bedrock principle that ultimately supports diversity, equity, and inclusion and that we must do everything in our power to ensure that it endures.
Jenny Martinez is dean of the School of Law at Stanford. Email her at stanford.magazine@stanford.edu.
