Free Speech Gets Tossed by Marc A. Thiessen

Political crossfire Free Speech Gets Tossed at Yale Law School

by Marc A. thiessen

D.C. Circuit Senior Judge Laurence H. Silberman sent an email to all federal judges nationwide asking them to think twice about hiring any of the more than 100 Yale University law students who attempted to shout down a speaker in a panel discussion on free speech as clerks. “All federal judges are presumably committed to free speech,” Silberman wrote, so they “should carefully consider whether any such student so identified should be disqualified for potential clerkships.”

Silberman is absolutely right – no judge should choose these individuals for clerkships. In fact, based on their behavior, they should not be at Yale Law School in the first place.

The incident took place at a forum featuring Kristen Waggoner of the Alliance Defending Freedom (ADF), a conservative group that defends religious liberty. As soon as Yale law professor Kate Stith began to introduce Waggoner, a group of students rose and began to shout her down, heckle her, with several reportedly holding up their middle fingers. When they refused to stop yelling, Sith told them to “grow up” and reminded them of Yale’s free speech policy. One protester shouted back that Sith was violating their right to free speech. Another reportedly threatened a student organizer of the event with violence, telling her she would “literally fight you.” The protesters eventually left the room, but, according to the Washington Free Beacon, stood outside the hall yelling and pounding on the walls. Campus police had to escort Waggoner out of the building. “It was disturbing to witness law students whipped into a mindless frenzy,” she said after the event, adding, “I did not feel it was safe to get out of the room without security.”

These are not college kids. They are adults on the fast track to highflying legal careers, studying at an institution which produces more clerks for federal judges and Supreme Court justices than almost any other law school in the United States. They should know better.

Moreover, the Alliance Defending Freedom is not a fringe group. Since 2014, the ADF has won 12 cases before

the U.S. Supreme Court. While the protesters may disagree with its positions on religious liberty, the Supreme Court has repeatedly affirmed them. They might have wanted to listen and learn why.

And Waggoner wasn’t just delivering a speech. She was participating in a discussion on civil liberties with a representative of a left-wing group, the American Humanist Association. If you want to clerk for a federal judge, listening respectfully as two sides discuss an issue is your job. If you can’t do that, you have no business serving in a judge’s chambers. The job of a federal judge is to uphold the Constitution. If these students show so little respect for the First Amendment in law school, they probably won’t respect it while drafting opinions for a federal judge either.

Worse still, the fact that the protesters actually believed their right to free speech was being suppressed is Orwellian. Shutting down free speech is not free speech. When you shout someone down, you’re not participating in argument – you are trying to prevent the argument from taking place. This is antithetical to the purpose of a law school, which is to teach students how to argue the law using reason and persuasion.

The fact that people who don’t understand this – and would behave in this manner – were even admitted to Yale Law School is a massive admissions failure. And they are not in the minority. Incredibly, 417 Yale law students – nearly two-thirds of the student body – signed an open letter criticizing the presence of “armed police” at the protest and defending the disruption. The invitation of the ADF “undermined our community’s values of equity and inclusivity,” they claimed, while complaining about the “faculty moderator’s dismissal of our peaceful action as childish.”

Actually, the moderator was far too kind. Their behavior was worse than childish; it was an affront to the legal profession. Screaming at someone who disagrees with you and giving the middle finger to a law professor is not how serious lawyers behave. No one who acts in this way should ever be anywhere near a federal judge’s chambers.

Some will say what Silberman suggests is cancel culture. Sorry, cancel culture tries to cancel people for making unpopular arguments. These students were not making an argument; they were trying to prevent Waggoner from making one. They were the ones who tried to cancel her, knowing full well that their illiberal conduct was being filmed for the world to see. And then they voluntarily put their names onto a statement defending the effort to disrupt the event. The First Amendment protects their right to do so – but it does not protect them from the consequences of their noxious behavior.

That letter should be read and filed away by every federal judge in America. Henceforth, anytime a Yale Law School student applies for a clerkship, they should take it out and check to see if the name appears on it – and throw out the applications of any who do.