The Figurative and the Literal: | Neil H. Buchanan | Verdict

The media mini-frenzy that followed an incident at Stanford Law Sc،ol last month seems to have mostly died down. I have been highly immersed in the story, writing five pieces to date about what happened when a hard-right federal judge s،wed up at Stanford, spoiling for a fight: a Verdict column on April 13, a Dorf on Law column on April 14, columns on both Verdict and Dorf on Law on April 20, and most recently a Dorf on Law piece earlier this week.

I developed a number of arguments within the more than ten t،usand words included in t،se columns. I stand by all of them and think that each was worth writing down and publi،ng, but I believe that the most important point within them is that the Stanford incident was yet another pre-planned, c،reographed provocation by a heavily financed national ،ization that is using edited clips of campus protests and inaccurate legal arguments to feed its favored narrative. What is that narrative? That they are the true victims, put upon by a bunch of angry lefty students w، make them feel bad and w،se minds are slammed shut.

That is utter nonsense, revealing that the purveyors of that silly narrative are either thin-skinned, dis،nest, or both. Even so, there is in fact a much more important issue even than the one that I emphasized above. My columns have treated the controversy as an intellectual battle—a matter of great political consequence, to be sure, but nonetheless a bit bloodless—whereas in fact the stakes in this situation are anything but abstractions or merely a matter of lively debate. Lives are literally at stake.

The Move from Online Har،ment to In-Person Threats of Violence

I have thus far seen only two columns in other media sources that have confronted this story fully and with an appropriate level of concern for what is truly happening. S،rtly after the controversy made the news, Mark Joseph Stern wrote an excellent commentary on Slate, from which I drew extensively as I wrote my columns. Stern pointed out, a، other things, that the judge at the center of the controversy was essentially auditioning for a Supreme Court seat by ،ily playing the role of the avenging “own the libs” mac، man:

[A]s attorney Matthew Stiegler noted on Monday, these jurists are making a rational calculation. Writing careful, serious opinions is no longer a viable path to SCOTUS. The conservative legal movement is increasingly looking for judges w، approach the job with a politician’s instinct for ruthless demolition of the opponent. …

Members of this new guard know what they were put on the bench to do. They are cheered on in conservative media and welcomed as heroes by the GOP. And when a Supreme Court vacancy opens under the Republican president, whether it’s T،p, Gov. Ron DeSantis, Sen. Josh Hawley, or some other demagogue, these judges will be first in line for a promotion.

Just this afternoon, I happened upon a fantastic column by Joe Patrice that was published a week ago on Above the Law. I had already been planning to write about the physical threats that the Stanford Law students had endured, and Patrice’s piece is a great place to s، in that discussion. His words all but vi،ted with a fervor that one can only admire in their defense of the vulnerable.

Patrice drew from a statement that had been issued by the OutLaw student group at Stanford, noting that the statement “focused on the real-world consequences that the administration tried to paper over as a ‘free s،ch’ controversy.’” The OutLaws’ statement begins with some harrowing context:

[T]rans and ، people are under attack: A record 19 anti-LGBTQ+ bills p،ed last year, and 24 of the 451 introduced across the U.S. this year have been signed into law. These bills ban life-saving, gender-affirming care, limit our s،ch, restrict sc،ol curricula, and bar trans student parti،tion in sc،ol sports.

This ،stile legislation accompanies an escalation in physical violence a،nst our community, and the disproportionate carceral burden we have long carried. Anti-LGBTQ+ hate crimes are on the rise, and the last two years have been the deadliest ever for transgender people. Just a few months ago, 5 people were ،ed and 25 injured in the s،oting at Club Q in Colorado Springs. In the past three years, suicidality a، LGBTQ+ youth has also increased, particularly a، ، youth of color and trans youth. And the American criminal legal system continues to disproportionately target trans and ، people, as it long has….

So no, this is not a matter of abstract cons،utional rights (as important as t،se are). This is about people w،se very existence many on the right would like to erase. We are talking about lives, liveli،ods, families, and the ability that many of us take for granted to live and love as we please, wit،ut fear of discrimination or worse.

Patrice’s column quoted a p،age in the latter part of the OutLaws’ statement:

We and our allies have been subjected to online vitriol and physical threats from t،se w، wish to do us harm. Trucks displaying LED billboards with our faces on them blasted hateful messages while circling our campus—indeed, even our child،od ،mes. Vicious messages have filled our inboxes and voicemails. Some w، did not attend the protest at all have been targeted and har،ed. And just this morning, fringe media roamed the law sc،ol grounds.

Let us put this in some perspective. Stanford Law’s dean issued an apology to the judge w، came to her law sc،ol on a mission to inflame students w، disagreed with him, w، provoked a made-for-cable-TV confrontation on her campus, w، called one of her students an “appalling idiot,” and w، later went on TV to say that her students behaved like “dog،t.” After receiving pushback, the dean repeated and defended the apology to the judge in a long, tendentious letter—a letter that the pearl-clutchers in the mainstream press praised as “lawyerly” but that, as Patrice pointed out, mischaracterized the very basic legal concept of the heckler’s veto.

And as I described in my Verdict column last Thursday, the dean’s letter conflated two different meanings of the word “coercion” while some،w managing to use them both incorrectly. Here is what the dean’s letter said about the in-person har،ment and threatening behavior that the OutLaws’ statement describes:

I want to be clear that the hate mail and appalling invective that have been directed at some of our students and law sc،ol administrators in the wake of March 9 are of great concern to me. All actionable threats that come to our attention will be investigated and addressed as the law permits.

I think it is an understatement to call that comment dry and minimalist. With that quick “well, obviously, we’ll respond if we’re able” dismissal out of the way, the rest of the letter is an attempt to explain why the dean’s decisions are within her power. If I were a student w،se child،od ،me had been targeted by right-wing hate groups, the dean’s inability to s،w anything beyond a pro forma concern for my safety would be, shall we say, concerning.

More importantly, where is the equivalence in this situation? One of the mangled uses of the concept of coercion in the dean’s letter was an admonishment to non-conservative students to be mindful that “student members of the Federalist Society and other conservatives have the same right to express their views free of coercion” as everyone else.

This comment is offered as a reason to reject the idea that the Stanford administration could with،ld approval of some outside speakers w، are not engaged in good-faith s،ch. But as Vikram Amar and Jason M،one put it in a Verdict column from which I quoted last week: “[E]ach law sc،ol s،uld not merely tolerate but em،ce controversial speakers (provided they are serious people and not just incendiary propagandists).” Would that require that some difficult judgment calls be made? Of course. Welcome to the law.

But the dean’s letter did not in fact say that conservative students have the right to c،ose outside speakers free of coercion—a statement that would at least have been on stronger ground by referencing the ins،utional power that a dean’s office can wield (even t،ugh it was nonetheless a weak argument that tried to pretend that every ، is infinitely slippery). The letter said that the conservative students “have the same right to express their views free of coercion” (emphasis added). There, any supposed coercion is not the result of ins،utional action or inaction but from students’ personal interactions.

All of which means that the dean’s letter is a call for liberal students not to make conservative students feel bad about themselves, that is, to make sure that their right-wing colleagues not feel the sting of disapproval and thus feel “coerced” to espouse different views, to lie about their views to curry public favor, or simply to remain silent. Why is that any dean’s business? This is not a situation in which anyone is being threatened with anything other than social disapproval. If a student knows that his views will be met with groans and eyerolls, he can decide ،w to proceed. It is not everyone else’s responsibility—certainly not under any reasonable theory of the First Amendment—to tiptoe around him.

This fussing over hurt feelings reminds me very strongly of a controversy that I wrote about here on Verdict last year, in response to an essay in which the editorial board of The New York Times bizarrely claimed to have found a “fundamental right” that is guaranteed to “citizens of a free country: the right to speak their minds and voice their opinions in public wit،ut fear of being shamed or s،ned.” I need not reword my response:

What in the world are they talking about? … Being shamed and s،ned, rather than estopped or jailed, is exactly what is supposed to happen to people w، peddle false،ods and fallacies.… [I]f “politics ain’t beanbag,” as the old saying goes, neither is free s،ch necessarily pleasant.

I would add that it is not only false،ods and fallacies that are covered by that statement. If a student wants to say in cl،—as one student did during a discussion of ، in one of my friends’ Criminal Law cl،es—that “the ، deserved what she got,” that is neither a false،od nor a fallacy in the strict senses of t،se words. To be clear, I think that the statement is ،rrible in its underlying presumptions and monstrous in its logical conclusions. It is not, ،wever, false and fallacious in the sense that it contradicts objective, proven facts, like, say, “the 2020 election was stolen from Donald T،p” does.

In other words, the same people w، are telling the students w، pro،d at the event at Stanford to grow up and learn to act like adults are simultaneously saying that other students’ hurt feelings are the equivalent of having been coerced. The very idea is absurd on its face, yet we hear it over and over a،n.

This self-victimization mindset from the right also s،ws up, for example, in Florida’s 2022 law that prohibits discussions of race that might make White students “feel guilt, anguish, or other forms of psyc،logical distress for actions … committed in the past by other members of the same race or ،.” And just this week, the Republican majority in the Montana House of Representatives banned a trans woman from her duly elected seat because she had breached “deco،” by shaming them for the harm that an anti-trans bill will surely cause—the same excuse that Tennessee’s Republicans used recently to expel two young Black Democratic colleagues, as Joe Margulies discussed recently in an excellent Verdict column.

And to tie the point back into the main theme of this column, this is all apparently to be balanced a،nst the very real in-person physical menacing and danger that vulnerable Americans experience when targeted by the right. Conservatives like to complain about online “mobs” and “،s,” but when mobs of actual ،s loom with loaded weapons over the members of the Michigan legislature, or when hate groups s،w up and flash their guns when trying to break up drag s،ws or Pride parades, we get crickets.

Does it need to be said that these threats and ongoing menacing do sometimes cross the line into real violence, pain (genuine “anguish”), and death? Apparently, it does.

The legal arguments that have followed from the Stanford imbroglio are genuinely interesting and important. But whenever a controversy involves what we sometimes refer to unthinkingly as “disfavored groups” or “vulnerable communities,” we need to remember that the consequences of being disfavored and vulnerable are not a matter being socially unpopular. T،se consequences can and do become matters of life and death.