Transcript: Alex Morey

My interview with the First Amendment attorney and director of campus rights advocacy for the Foundation for Individual Rights and Expression

Earlier this month, a federal court judge went to speak to students at Stanford Law School. Judge Kyle Duncan has referred to the explosive protests that ensued as a “struggle session,” while student hecklers have defended their actions as counter-speech. My guest on today’s program has some thoughts on this free speech controversy — and where the university should go from here.

Alex Morey is a First Amendment attorney and the director of campus rights advocacy at the Foundation for Individual Rights and Expression.

This is an edited transcript for paid subscribers. You can listen to the episode for free here.

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TH: Alex, welcome to Lean Out.

AM: Thanks so much for having me.

TH: Really nice to have you on today. You’ve been following closely the recent controversy at Stanford Law, which saw a federal court judge heckled by students in a pretty disturbing way. For people who are not up to speed on this story, set this up for us. I know you wrote a post-mortem on it for FIRE. What happened earlier this month when 5th Circuit Judge Kyle Duncan was invited by the Federalist Society at Stanford Law to speak to students?

AM: So the video that first came out — to situate you where the public was, when we first found out about this — there was a 10-minute clip that came out that was posted online, showing what appeared to be students pretty aggressively heckling this judge, who is a federal appeals court judge.

He’s a Trump-appointed judge, and the student hecklers — of which there were many in this auditorium, among the Federalist Society students and others who wanted to hear him — these hecklers, they disagree with the judge’s holdings. There was a controversy over him allegedly misgendering someone repeatedly, who was before his court. So these students were basically saying, “We don’t want you to speak here. We are going to interrupt you, laugh at you, drive you off course.” And what ended up happening — the full audio later came out, appearing to substantiate what was in that initial 10-minute clip — was that these students were really not letting him get to his prepared remarks.

What made this really unique was that there were so many of these students, that they were so aggressive in their heckling, and that normally when these things happen, an administrator or security steps in to they remove the heckler. Sometimes they have to remove them one by one, if there are many of them. Not only did that not happen in this case, but you have one of the deans — the dean of diversity, equity and inclusion — kind of take over the podium in what was ostensibly an effort to restore order. After about 10 or 15 minutes of nonstop heckling, the judge said, “Is there a grownup here that can help?” She got up on the podium and said, “We love free speech at Stanford, but the things you say are really harmful and is the juice worth the squeeze?” That was the quote that went sort of viral. Is it worth having free speech at Stanford if you’re going to say things that are upsetting to these students?

And so, in the aftermath, there has been an uproar over free expression. We do a lot of free expression — we do all free expression — at FIRE. I work on the campus side. For 20 years, FIRE has been watching campus rights stuff. For a long time, it was just us versus administrators. We’d see a speech code that was silencing students, and we’d write them a letter, in the last five years, and especially since 2020. [Now] it’s at a new level with Stanford, where we’re seeing students and sometimes administrators on the same side against free expression. Especially at a school like Stanford — where they are supposed to have the best and the brightest students, who may one day hold Judge Duncan’s seat, or appear in his courtroom, openly showing this level of disrespect for even hearing his opinions — that is concerning. And of course students don’t have to listen to him. [Or] they can protest him but peacefully, outside of the event space, so that the student group that invited him can hear what it is that he had to say.

TH: There’s a lot to unpack with this particular event. I do want to get to the juice squeeze comment. But first, FIRE has taken a position on this. I should say to listeners, before we start on this, that I do support FIRE — and have, in fact, recently bought a ticket to a fundraising event. So this is something I care about a lot and listeners should know that, in terms of this interview. But let’s talk about the position that FIRE has taken. What action has FIRE taken on this case?

AM: For those who are not familiar with FIRE’s work, like I said, we’ve been around 20 years. We’re nonpartisan, and the position that we take on speech is that people should have the right to speak their minds. We don’t take a position on what Judge Duncan wanted to say, or what the Federalist Society wanted him to say. We don’t take a position on what the protestors said. Only that in this situation, the Federalist Society and Judge Duncan had the forum, the right to have their speech heard without disruption. And that, in this case, the protestors were engaging not in counter-speech, not in free speech, but in censorship, in silencing him in that forum. What they should have done instead was go outside, or go nearby to the many places that Stanford did provide for them, to peacefully protest.

We fight for the rights of students and protestors routinely. There was recently something at Penn State, where we took the school to task for violating both the rights of the speaker and the protestors by shutting down the whole event and protest. We said, “Everybody should have the right to speak their mind.”

So, here our position is two or threefold. First of all, we think that Judge Duncan should have had the right to speak, because he was invited by a student group that has their own expressive and associative rights to invite people to campus to speak, and they wanted to both have him express his views and hear those views. So there’s one ding there. Then we have the hecklers, who, in this case, were not engaging in peaceful protests, but were prohibiting the judge from speaking and the Federalist Society and others who wanted to hear from hearing.

Then we have a situation where at Stanford, Stanford promises — like many elite schools, many schools, private schools period — they promise First Amendment-like commitments to their students. And they additionally have to because they’re a private school, a private non-religious school, in California. California has a special law called the Leonard Law, which applies First Amendment protections to students on these private campuses. So that means that Stanford administrators have to step in when their students’ expressive rights are threatened.

So, when there were many administrators present at this heckling and they saw this judge being heckled, someone should have removed the hecklers. There should have been some level of security there, to make sure that the speech could go on, if they thought there were going to be protests. And then when the DEI dean gets up and doesn’t say, “Hey, anybody who’s heckling better get out right now. Final warning.” And instead says, “We love free speech, but — wink and nod to the protestors, the hecklers here — I really appreciate that you guys are shouting this guy down because I don’t like what he’s saying either,” that is toxic for a free speech culture on campus.

Not to mention it is violating all the policies, and the rules, that should apply to Stanford. So in the wake of this, the dean of the entire Stanford Law School, Jenny Martinez, and Stanford’s president, Marc Tessier-Lavigne, they have been on an apology tour. They wrote a personal apology to Judge Duncan. They wrote an initial public statement. They’ve written to alumni. They seem genuinely sorry that this happened. But where the rubber is going to hit the road is going to be how they deal with this. There have certainly been calls to fire the DEI dean and punish the students. We don’t take a particular position on what Stanford ought to do, just that they need to enforce their policies to ensure that students can speak freely, and not think that if they want to talk about a controversial topic on campus that they’re going to be stopped from doing so.

TH: Jenny Martinez is now herself being protested by students, I understand.

AM: And we would stand up for their right to do that. Even if, as I had a journalist describe it to me yesterday, it’s “creepy.” Some of the protests that were happening earlier this week after Martinez apologized, these students/hecklers/heckler sympathizers were clad in all-black with masks. I think across the mask it said “counter speech is free speech.” The reports were that they lined the hallway near where Martinez was, and just sort of silently stared at her. Which is something we have not seen before. From everything we heard, it’s protected. It would not rise to the level of a threat or intimidation by law. But certainly an interesting tactic that we have not seen before. But yes, like I said, when people peacefully protest, we will defend their right to do it. When they shout down a speaker, not so much.

TH: Let’s talk about this DEI dean, Tirien Steinbach, who spoke during the incident, as you pointed out, and asked this very odd question, “Is the juice worth the squeeze?” As in: Is whatever he has to say to students so important that it’s worth upsetting them with his presence? And, as you also pointed out, some are claiming that she did calm the crowd. That she did insist on the judge’s right to speak. But very mixed messages throughout what she was saying. So, how do you think through this statement about the juice and the squeeze — both in the context of free speech laws that govern these students, in this context, but also for free speech culture?

AM: I mean, two things that we always are working through at FIRE is, one, did her statements or actions somehow violate the law? It seems to, in the sense that first of all, she — and I believe at least one other administrator — was there, and they saw this violation of Stanford’s free speech policy happening, and they did nothing to stop it. So, again, because Stanford promises free speech, and they have to provide it via the Leonard Law via the First Amendment, when someone’s speech is under threat, Stanford has a duty to step in and fix it. Then, the speech that she gave is indicative of a couple different kinds of problems from our perspective. First of all, she gets up there and talks about free expression and says many administrators at Stanford feel that free speech is good, et cetera. But, on net, it was not a robust defense of free expression. And so it raises the question: Is Stanford making their administrators aware of their obligations to free expression under the law? What exactly is the kind of training that they might undergo?

Second question: Are there questions at Stanford about whether or not their free expression policies are good or bad, or should they be rethought? Now, of course, with the Leonard Law, they can’t really be rethought. But it does raise questions about what kinds of behind-closed-doors discussions about free expression are happening among high level people at Stanford. This is also a DEI dean who is interacting with a lot of students — more so than maybe the dean of the entire law school, or the president of Stanford, et cetera. So, the fact that she may be providing misinformation to certain students about their expressive rights, or about the expressive rights of others, is really concerning.

One of the things that’s important to know — I started my spiel about how did we learned about this happening with the video coming out — it later was learned that Dean Steinbach, in the run-up to Judge Duncan’s speech, sent an email to members of the law school community saying similar things about how she expected Judge Duncan’s speech, his appearance, to be harmful, simply because previously he has made rulings that are perceived as anti-trans, et cetera. So, to us, it really read as … She has the right to say these things. But given what ended up happening, and given her lack of ability to control the crowd in the actual event itself, it really read as her kind of suggesting that maybe students ought to shout down this speaker. And that, of course, is wildly inappropriate from an administrator.

She’s the inclusion lady — that includes diverse viewpoints. The Federalist Society students were admitted to Stanford, just like the students who are affiliated with the hecklers were admitted to Stanford. They all have a right to express themselves and speak out on campus. And someone like Dean Steinbach ought to know that. So, it was a very unusual statement to be delivered publicly.

For a long time, FIRE has seen the ballooning administrative class at many colleges and universities, which carries with it its own problems. Administrators have dual and sometimes really conflicting, jobs to do. On the one hand, they’re supposed to be facilitating the running of an institution of higher education — over which faculty decide what should be on syllabi, and departments should have the ability to engage in shared governance, and students should be able to speak out. On the other hand, these administrators are also running what’s effectively a business. They care about making sure that controversies are quieted down immediately.

They care about when students complain about things like bias, or are going on Twitter saying, “My school isn’t doing something about whatever is the cause du jour.” These administrators feel required to spring into action and say, “We’re going to investigate. We’re going to punish.” What’s often forgotten is that at the core of a university’s mission is the ability of students to hash out these arguments on their own. Now, that’s not to say that administrators shouldn’t investigate when something like harassment or threats or discriminatory harassment is going on. But we have increasingly seen this concept creep, where it’s like, “A judge came to speak at our school and he once said something that was anti-trans. So that is a threat to me. Now it’s discriminatory harassment.” Now, that does not approach the legal definition for a threat or discriminatory harassment, but administrators are hearing this from students and feeling like, “Oh my God, donors are going to stop donating. Oh my God, we’re going to get criticized on Twitter. We better punish and investigate.” And of course, again, that’s also horrible for a culture of free expression at any college or university.

TH: I do want to talk, in a moment, about what this all means for campus culture. But first, let’s touch on the online controversy around this whole event. FIRE does have its critics, and one of those is Isaac Bailey, a visiting professor at Columbia, a Nieman Fellow at Harvard. I think he’s probably the most outspoken one I’ve seen. And in the context of the Stanford Law case, and FIRE’s reaction to it, he has said, “FIRE is nonpartisan in its legal fights, but comes across as very partisan and its rhetoric.” And one of the things he points to is “there is no sense FIRE understands ‘free speech’ is being weaponized by bad actors to beat back progress to the detriment of vulnerable groups.” How do you grapple with that kind of criticism?