Judge Kyle Duncan Gives Free Speech Lecture at Notre Dame After Being Shouted Down at Stanford

Kyle Duncan delivers his opening statement to the U.S. Senate Judiciary Committee confirmation hearing on his nomination by President Donald Trump to be a judge of the 5th Circuit Court of Appeals in New Orleans on Nov. 29, 2017. Youtube/Screenshot via The Epoch Times

A U.S. judge delivered a speech at a university on March 24, a few weeks after students and a top staffer prevented him from doing so at Stanford University.

U.S. Court of Appeals Judge Kyle Duncan, a Trump appointee, told listeners at the University of Notre Dame that there’s a “vital tradition of free speech in this country” and that students have the right to protest him.

“It’s a great country, where you can harshly criticize federal judges and nothing bad will happen to you. You might even get praised or promoted,” he said. “But make no mistake. What went on in that classroom on March the ninth had nothing to do with our proud American tradition of free speech. It was rather a parody of it.”

Duncan started to deliver a lecture at Stanford Law School earlier in March when students began heckling him so loudly that he was unable to continue.

Multiple staff members did not intervene.

Stanford Law School Dean Jenny Martinez later said the way the event unfolded “was not aligned with our institutional commitment to freedom of speech.”

After blowback from some students and staffers over her statement, Martinez offered a lengthy letter reiterating her stance. She noted that protests are allowed, but not ones that disrupt events.

“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,” Martinez said.

She said that the apology, and the policy it defended, was “fully consistent” with the U.S. Constitution’s First Amendment and that apology, and the policy it defends, is fully consistent with the First Amendment, which protects the right to free speech, and California’s Leonard Law, which bars private colleges from imposing rules that would curtail First Amendment rights.

Students calling for officials to restrict the Federalist Society, which hosted Duncan, and the speakers the organization can invite 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,” Martinez added later.

Philip Munoz, a professor in political science and a law school professor at Notre Dame who invited Duncan to talk after the disrupted Stanford event, opened by telling attendees not to interrupt the judge.

“Notre Dame is especially good at doing free speech,” he said.

Duncan said that most federal judges are reclusive and he accepted the invitation due to the “unusual event” at Stanford. Munoz, he said, “promised I wouldn’t be silenced during this talk.”

‘Not Free Speech to Silence Others’

Duncan, after praising Martinez’s apology and new letter, said that the Stanford students weren’t engaging in free speech when they prevented him from speaking.

“It is not free speech to silence others because you hate them. It is not free speech to tear and heckle a speaker who has been invited to your school so that he can’t deliver a talk. It is not free speech to form a mob and hurl taunts and threats that aren’t worthy of being written on the wall of a public toilet. It is not free speech to pretend to be harmed by words or ideas you disagree with, and then use that feigned harm as a license to deny a speaker the most rudimentary forms of civility,” Duncan said.

“Some of the students were apparently convinced that what they were doing was, ‘counter speech.’ Wrong. Counter speech means offering a reasoned response to an argument. It doesn’t mean screaming ‘Shut up, you scum we hate you,’ at a distance of 12 feet. Other students claimed this was nothing more than the ’marketplace of ideas in action,' again, wrong. The marketplace of ideas describes a free and fair competition among opposing arguments, with the most compelling one we hope emerging on the top. What transpired at Stanford was no marketplace. It was more like a flash mob on a shoplifting spree.”

The students that attended the talk to protest “had no interest in my talk at all,” the judge said. “They were there to heckle and to cheer and to shame.” What was carried out amounted to intimidation, he added.

“And to be clear, not intimidating me. I’m not intimidated by any of this. I’m a life tenure judge. I’m going to go back to my court and keep writing opinions,” he said. “No, the target of the intimidation was the protesters’ fellow students. The message could not have been clearer, ‘woe to you if you represent the kind of clients that Judge Duncan represented, or you take the same views that he has.’”

DEI Official Speaks Out

Tirien Steinbach, Stanford Law School’s associate dean for diversity, equity, and inclusion (DEI), eventually took the microphone after the heckling started when Duncan was at the school.

She lectured Duncan, claiming that “your work has caused harm” and that his rulings infringed on the rights of Stanford students and staff.

Steinbach is on leave, Martinez revealed this week.

In an op-ed, Steinbach said she supported not canceling Duncan’s speech or moving it to online-only, and also welcomed students engaging in their right to protest. She said she attended the event “to observe and, if needed, de-escalate.”

“I stepped up to the podium to deploy the de-escalation techniques in which I have been trained, which include getting the parties to look past conflict and see each other as people,” she said. “My intention wasn’t to confront Judge Duncan or the protesters but to give voice to the students so that they could stop shouting and engage in respectful dialogue. I wanted Judge Duncan to understand why some students were protesting his presence on campus and for the students to understand why it was important that the judge be not only allowed but welcomed to speak.”

She added later, “Free speech, academic freedom and work to advance diversity, equity and inclusion must coexist in a diverse, democratic society.”

Martinez’s first statement said that “however well-intentioned, attempts at managing the room in this instance went awry.” Stanford University President Marc Tessier-Lavigne and Martinez, in an apology to Duncan a day later, said that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways.” On March 22, Martinez said she stood by that statement.

“Enforcement of university policies against disruption of speakers is necessary to ensure the expression of a wide range of viewpoints,” she wrote to the school community. “It also follows from this that when a disruption occurs and the speaker asks for an administrator to help restore order, the administrator who responds should not insert themselves into debate with their own criticism of the speaker’s views and the suggestion that the speaker reconsider whether what they plan to say is worth saying, for that imposes the kind of institutional orthodoxy and coercion that the policy on Academic Freedom precludes.”