Law Schools

Yale Law School Free Speech Crisis Mostly Fake News

Don't let the facts get in the way of a whiny narrative.

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Yale Law

(Photo via Yale Law School)

This won’t come as much of a shock to anyone familiar with the Wall Street Journal’s op-ed page, but the reports of students “shouting down” speakers at a Yale Law School Federalist Society event seem, to be overly generous, exaggerated. Good thing we spent a week with overwrought jeremiads about cancel culture and bad “heckler’s veto” takes over something that didn’t really happen!

And, to be fair, I’m as guilty as anyone here. While I defended the right to protest against the current of detractors gobbling up clicks at right-wing grievance outposts like WSJ and Substack, I took the facts provided by the Journal at face value and assumed protesters really did drown out all the speakers through concerted action.

As I heard from witnesses, I learned that wasn’t really the case. And now the official response from Dean Heather Gerken confirms that:

Shortly before break, a group of students protested the Federalist Society’s decision to bring a speaker from Alliance Defending Freedom to campus because of the organization’s position on LGBTQ rights, including same-sex marriage and the treatment of transgender people.

I mean… it’s a Southern Poverty Law Center designated hate group so “because of the organization’s position” is quite the exercise in yadda yadda-ing. That’s like saying, “many questioned Thanos because of his unorthodox views on sustainability.”

Under the University’s free expression policy, student groups have every right to invite speakers to campus, and others have every right to voice opposition.

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Excellent! This should actually be the end of the statement. It’s not, but it should be.

In accordance with the University’s free expression policy, which includes a three-warning protocol, those protesting exited the room after the first warning, and the event went forward.

Oh. So a protest was staged to make a statement in accordance with the school’s “time, place, manner” restrictions and then it moved outside to let the event continue. Nobody disagrees that institutions can impose reasonable restrictions like that — it’s why you can protest an election but not storm the Capitol.

And another witness confirmed for me that this “first warning” was issued and no other warnings followed. The students complied completely.

One point I’ve made a lot over the past week is that protests can cross the line and that there’s a lot schools can do to reasonably regulate how protests go down, but my core objection to all these editorials is their insistence on categorizing protest as per se counter to free speech. One could debate whether or not this three-stage approach is the right one, but given that it exists and the protesters complied with it, that should end all inquiry.

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Although the students complied with University policies inside the event, several students engaged in rude and insulting behavior as the event began; a number made excessive noise in our hallways that interfered with several events taking place; and some refused to listen to our staff.

“Although” and “the students complied with University policies” shouldn’t really come together in the same sentence. But reading not so hard between the lines what this passage says is: no, the event wasn’t “shut down” by shouting protesters. This is huge!

Because the crux of the more high-minded critiques of law school protesters — like this one from Berkeley Law Dean Erwin Chemerinsky and UCI Chancellor Howard Gillman — revolve around the idea that protest is one thing, but a functioning university system requires, at a minimum, that everyone be allowed to express themselves fully before being challenged. Personally, I can make arguments for both sides of that claim, which is a testament to its fairness.

But if protests don’t actually prevent events from going forward then there’s absolutely no “there” there to support the application of this critique. In this case, the event did go forward and anyone who wanted to hear the proceedings got the opportunity to do so. This obviates all of the Chemerinsky and Gillman concerns — at least with regard to the facts of the Yale event.

Some other accounts have made reference to law enforcement having to come to campus, implying that this supports the narrative of an unruly protest. Except the police were never there for the protest — they were there because ADF’s speaker brought her own security detail. Per school statement: “When visitors to the Yale campus bring their own security, as in this case, University policy requires the Law School to inform Yale Police.”

This behavior was unacceptable; at a minimum it violated the norms of this Law School. This is an institution of higher learning, not a town square, and no one should interfere with others’ efforts to carry on activities on campus. YLS is a professional school, and this is not how lawyers interact. We are also a community that respects our faculty and staff who have devoted their lives to helping students. Professor Kate Stith, Dean Mike Thompson, and other members of the staff should not have been treated as they were.

Interesting that this statement singles out Professor Stith as mistreated. From a witness account I’ve received there was a “brief but tense” exchange with Professor Kate Stith. Kate Stith then read from the aforementioned three-warning free expression policy. Protesters responded, “This is free speech.” She responded, “grow up,” and said that the students were free to leave and protest in the halls, or sit and listen quietly. At that time, more than half of the protesters left and the rest stayed and listened, waiting for the Q&A session.

Which tracks with Dean Gerken’s statement, with the additional note that Stith responded to the protesters with derision and then volunteered the invitation to protest outside.

The deeper issues embedded in this event are not unique to Yale Law School — they plague our democracy and institutions across the country.

Personally, I think the plague to our democracy and institutions is the uncritical both-sideism that would normalize an organization identified as a hate group by the SPLC as “just another point of view worthy of a stage,” but whatever.

The moral of this story is that everyone should take these protest controversies with a mountain of salt. Remember that when outlets like the Wall Street Journal latch onto a story, it’s usually because the protesters didn’t do anything to cross the line. That’s why these right-wing publications are so invested in the pet project of recharacterizing the right to protest as contrary to free speech: when protests aren’t really crossing the line, just change the line.

(Dean’s statement on the next page…)

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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