Heather Gerken, Dean and Sol & Lillian Goldman Professor of Law at Yale Law School.
David Lat is cautiously optimistic that the Judges’ Boycott of Yale Law graduates for clerkships has put the fear of God (or, at least, grave alarm at the loss of prestigious career opportunities translating into money and power) into the powers that be at the Yale Law School.
In the wake of the announcement of Judge James Ho (5th Cir.) that he would no longer hire clerks from Yale Law School, a boycott joined so far by Judge Lisa Branch (11th Cir.) and a dozen other judges who wanted to remain nameless, Dean Heather Gerken has been quietly reaching out to prominent conservative jurists. Her message: YLS is deeply committed to free speech and intellectual diversity, it has taken concrete steps to support that commitment, and as dean, she welcomes hearing from judges about what else can be done to promote and protect academic freedom at Yale Law—including Judges Ho and Branch, the progenitors of the YLS boycott.1
A week ago today, on Thursday, October 13, Judges Ho and Branch responded to Dean Gerken’s outreach with a letter (which you can download via the embed above). Here’s how it begins:
Wowzers! I share the judges’ hope that the panel can take place before January 17—because I don’t know if I can wait that long for such an epic event.
Substance aside, I suspect that the reception to Judges Ho and Branch will determine whether they actually push through with their boycott (which both judges have explained doesn’t apply to current YLS students and graduates, only future students—so in a sense it hasn’t really taken effect yet). If Judges Ho and Branch receive a cool but ultimately civil reception from Yale Law’s overwhelmingly progressive student body, then I expect the judges to stand down. But if they get shouted down at YLS, as Kristen Waggoner of the ultra-conservative Alliance Defending Freedom did this past March, that will powerfully prove that Yale’s free-speech problems are profound—and might get even more judges to publicly hop on the anti-YLS bandwagon.
The rest of the judges’ four-page letter—which I urge you to read in full, along with Judge Ho’s forthcoming article in the Texas Review of Law & Politics, Agreeing to Disagree: Restoring American by Resisting Cancel Culture—is an eloquent defense of free speech, open discourse, and civil disagreement. The last two pages respond to a statement by Dean Gerken that was posted on the YLS website last Wednesday, October 12, A Message to Our Alumni on Free Speech at Yale Law School (“Alumni Message”). So I’ll walk you through that statement now, offering reporting and opinion of my own, as well as comments from the Ho/Branch letter. (The Alumni Message was previously covered by Karen Sloan and Nate Raymond of Reuters, Brad Kutner of the National Law Journal, and Debra Cassens Weiss of the ABA Journal.)
Here’s how Dean Gerken’s Alumni Message begins (all hyperlinks in the original):
Dear members of our alumni community:
Yale Law School is dedicated to building a vibrant intellectual environment where ideas flourish. To foster free speech and engagement, we emphasize the core values of professionalism, integrity, and respect. These foundational values guide everything we do.
So far, so good. Please proceed, Dean Gerken.
Over the last six months, we have taken a number of concrete steps to reaffirm our enduring commitment to the free and unfettered exchange of ideas. These actions are well known to our faculty, students, and staff, but I want to share some of them with you as well.
Last March, the Law School made unequivocally clear that attempts to disrupt events on campus are unacceptable and violate the norms of the School, the profession, and our community.
I don’t view Dean Gerken’s statement on the infamous March 10 protest as making “unequivocally clear” that what transpired was unacceptable; to the contrary, I found her statement rather… equivocating. But instead of repeating myself, I’ll simply incorporate by reference my earlier exegesis of her comments. I would also refer you to page 3 of the Ho/Branch letter, in which the judges similarly criticize YLS’s handling of the March 10 protest and refute the attempt to defend that handling.
Back to the Alumni Message:
The faculty revised our disciplinary code and adopted a policy prohibiting surreptitious recordings that mirrors policies that the University of Chicago and other peer institutions have put in place to encourage the free expression of ideas.
I will spare you—and me—from a painstaking parsing of the updated disciplinary code, which runs to seven single-spaced pages. For now, here’s a concise explanation of the latest revisions that was provided to me by Professor Claire Priest, who served on the faculty committee responsible for the changes:
I am writing because it was so disappointing to hear that Judge Ho and other judges called for a hiring freeze on YLS clerks due to the disruptive protests against Alliance Defending Freedom last year. Since last January, I have served on a committee led by Professors Oona Hathaway and Tracey Meares that rewrote the rules of the law school. One of the first revisions we made clarified that “reckless” disruptions of law school events are major violations of the code.
Since the 1970s, the school has been governed by the Rights and Duties (“R&D”), which was poorly written and vague, and resulted in an environment where the Dean and administrators were effectively in charge of all discipline. After the ADF protest, Dean Heather Gerken constituted a committee to rewrite the rules to make it explicit that reckless disruption of classes, events, and the business of the law school will constitute a major violation of our rules going forward. Unfortunately, we did not feel we could publicize this until September 21, when the faculty unanimously voted for the new code. The revised code also clarifies the procedures we will use and takes much of the disciplinary work out of the hands of our student-facing administrators.
One thing I’d highlight from Professor Priest’s message: the committee that led the R&D revision was appointed last January—after the scandals known as Dinner Party-gate, Trap House-gate, and Antiracism Training-gate, but before Protest-gate, and well before the Ho-led boycott. So while Judge Ho can take credit for highlighting YLS’s free-speech problems and restarting the conversation about them after the summer break, the process of revising the R&D was underway long before that.
Yale’s administrators are very good at wining, dining, and brown-nosing influential squeaky wheels and beyond that, this particular threat definitely impacts Dean Gerken’s own prospects of survival in office, so it may very well be that, at least to some extent, henceforward the power of campus radicals to cancel speech and appearances by public figures they do not like will (for practical reasons, not principle) wind up thrown under the Free Speech bus.
But for everybody else, we really are hiring! Join a talented, determined, passionate, motley team of all backgrounds and beliefs. We debate respectfully, execute maniacally, and live to serve writers and podcasters.
[L]ast month, a group of fascist Yale Law students successfully shouted down a Federalist Society program that featured a dialogue between a leftist and a representative of the Alliance Defending Freedom. The protest was rowdy enough that police were summoned to maintain order.
Now, more than 400 Yale Law students, representing over 60 percent of the student body, have signed a pathetically weak letter to the law school’s administration protesting the fact that law enforcement was called to keep the peace. The letter would be dumb if it came from a group of 7th graders. The fact that it comes from law students reflects the catastrophic decline of education in America.
Andrew Koppelman, John Paul Stevens Professor of Law and professor of political science at Northwestern University.
Professor Koppelman wrote a generally extremely sound essay in the Chronicle of Higher Education (mostly a red rag, full of left-wing stupidity) commenting on some Yale Law School students’ and its Administration’s hysterical response to a student’s Constitution Day Party invitation.
However, the good professor opens the piece with a conspicuous bit of assurance that his head is in the Left Place ideologically. Catch this! (Use Outline link, because of paywall.)
The movement for diversity and inclusion has improved people’s lives in many tangible ways. A few days ago at Northwestern Law School, where I’m a professor, I went into the men’s restroom and saw that the school had provided tampons and sanitary pads on a shelf there. It made me happy. There are people here who menstruate and identify as male. Their needs matter, and the school now recognizes that.
But in other respects…
Jesus, Mary, and Freddie! Obviously hanging out with the loonies and wet ends teaching at contemporary elite universities addles the brain and assimilates even normal, well-educated people into group insanity.
Let me break it to you, Professor Koppelman: “People ..who menstruate and identify as male” need their heads examined a lot more than they need special accommodation in lavatories intended for men who pee standing up.
Where does the group insanity that makes the Modern University a hive of totalitarian crackpottery and the enemy of America, Western Civilization, and even the Liberal Ideal of Free Speech originate? It starts with the moral cowardice that declines to stand up in opposition to any complaint or demand, however absurd, irrational, or insolent, from anyone or any group bullying with the moral jiu jitsu of Victimhood.
But, as I’ve acknowledged, if you excerpt that paragraph of Woke Wankery, its a good essay that hits Yale Law’s nail solidly in the head.
Matt Taibbi is still a man of the Left, but he wasn’t Woke enough for Rolling Stone, so being a victim of Cancel Culture himself, he’s basically on the right side on Free Speech and Censorship at the hands of Establishment Media and Big Tech. Here’s his latest:
For blue-leaning audiences, news that companies like Facebook and Google had begun shutting down or de-ranking accounts in ways we’d never seen before was, to my initial shock, mostly perceived as a good thing. In the wake of Trump’s election, many Democrats believed something had to be done about “fake news,” Russian trolls, and, especially, inflammatory right-wing speech.
Polls showed 40% of millennials believed the government should be allowed to limit speech offensive to minorities, a number significantly higher than the one for either Baby Boomers (23%) or GenXers (27%). If those levels of support among younger voters existed for outright government censorship, how would that audience ever be convinced to care about private companies zapping political accounts?
The issue was such a non-starter with younger, blue-leaning audiences that when I did a feature about Facebook’s 2018 purges of so-called “inauthentic” accounts, Rolling Stone headlined the piece, “Who Will Fix Facebook?”, as if to disguise what the story was actually about. (I got letters from disappointed readers who’d been drawn in by the headline, hoping to read a story demanding that Facebook wipe out more right-wing/conspiratorial content). After the expulsion of Alex Jones and Infowars from Apple, Facebook, Google, and Spotify, it seemed many younger readers didn’t see a problem with increased content moderation. If anything, Silicon Valley didn’t remove enough obnoxious content.
Conservative readers from the start have been significantly more unnerved by the content moderation movement, for the obvious reason that most higher-profile targets of tech crackdowns have been right-wing figures. After years of decisions like kicking Donald Trump off Twitter, suspending or banning figures like James Woods and Milo Yiannopoulis, and intervening to block access to the New York Post’s expose on Hunter Biden, the censorship issue in conservative media has usually been pitched as being a problem exclusive to them.
After the Hunter Biden story was blocked, Republican politicians like Mississippi Senator Roger Wicker and Colorado’s Cory Gardner hauled tech CEOs to Washington to face accusations of “bias.” At the much-covered hearing in October, Wicker railed at Twitter CEO Jack Dorsey. “Mr. Dorsey, your platform allows foreign dictators to post propaganda, typically without restriction,” he said, “yet you typically restrict the president of the United States.” Read the rest of this entry »
Back in 1920, F. Scott Fitzgerald, Princeton ’17, in This Side of Paradise described “The Yale Thing” this way:
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“I want to go to Princeton,” said Amory. “I don’t know why, but I think of all Harvard men as sissies, like I used to be, and all Yale men as wearing big blue sweaters and smoking pipes.”
Monsignor chuckled.
“I’m one, you know.”
“Oh, you’re different.” I think of Princeton as being lazy and good-looking and aristocratic,” you know, like a spring day. Harvard seems sort of indoors”
“And Yale is November, crisp and energetic,” finished Monsignor.
“That’s it.”
They slipped briskly into an intimacy from which they never recovered.
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The Yale man in fiction was typically portrayed as an All-American, square-shooting man-of-action, along the lines of Frank Merriwell, Dink Stover, Flash Gordon, and even Bruce Wayne.
The modern ascendancy of leftism can **** up anything, even the Yale identity.
On Facebook, some self-appointed younger alumni (nearly all female) and some Albertus grad who merely works at Yale set up and run the “Yale Alumni Group.”
Typically, that group has a rules regime created by sanctimonious left-wing goo-goos.
1. Agree to Abide by the Rules of this Group by Joining it
By joining this group, you agree to abide by its policies below and understand that group Admins and moderators will enforce those policies at their discretion.
This page is heavily monitored. Posts that do not contribute to alumni community-building or are determined to be antagonistic, racist, sexist, homophobic or otherwise rude or insulting, will be deleted and the user may be muted, blocked and/or banned from the group immediately without notice.
In other words: Surrender your free speech rights at the door.
2. No Hate Speech, Bullying, Insulting or Rude Language
This page is heavily monitored. Posts that do not contribute to alumni community-building or are determined to be antagonistic, racist, sexist, homophobic or otherwise rude or insulting, will be deleted and the user may be muted, blocked and/or banned from the group immediately without notice. …
6. Be Kind and Courteous. Like at Yale.
We’re all in this together to create a welcoming environment. Let’s treat everyone with respect. Healthy debates are natural, but kindness is required. …”
“Be Kind and Courteous. Like at Yale.”? What Yale is that? Not the Yale I was at. The Yale I knew was full of intensely competitive, sharp-tongued young men with a talent for cutting remarks who were not inclined to suffer fools and simps gladly.
Obviously, the more recent Yale has been sensitized and feminized, neutered and house broken, and politically corrected and pansified to a fare-thee-well.
Yalies today clearly do not wear big blue sweaters and smoke pipes, they get tattoos and piercings and emote a lot. They are not a bit reminiscent of November. They are like a sticky, humid day in August in the rainy season in a Third World swamp.
Over the last 48 hours, that Facebook Yale Alumni group featured a thread started by a typical female specimen who wanted advice about how to cope with “bullying and intimidation” when “speaking truth to power” at an upcoming meeting of some unnamed non-profit board.
It seemed obvious to me that anybody who started off telling you they enjoyed some sort of privileged possession of the truth, and who regarded debate and disagreement as “bullying and intimidation” was a deluded and outrageously self-entitled nuisance with a penchant for posing as a victim. I thought all this cowardice about facing oppositional speech and eagerness to play the victim card was decidedly unbecoming in a graduate of Dear Old Yale and consequently a card-carrying member of the national elite, and said as much. I carefully phrased all my observations as blandly and politely as possible (knowing perfectly well that censorship was a hair-trigger away).
A number of other females rushed immediately to her defense, accusing me of “mansplaining,” not entirely inaccurately describing me as “arrogant and insufferable,” and demanding that I check my white male privilege.
I responded with this poster meme:
Within a few minutes, when I went to read the responses, I found that all of my comments had been purged.
Having taken great care to avoid any actual pejoratives or colorful expression, I was much annoyed. I had drink taken as well, and I lost my temper. I sat down and wrote a posting specifically insulting the group’s management characterizing their sexual proclivities and existential status and urging them to commit obscene acts, some actually impossible. I’m afraid my boyhood roots in a mining town in the Hard Coal Region came out under provocation.
Not surprisingly, a minute later, I was no longer a member of the Facebook Yale Alumni Group.
But I’m not done with those wee slinkit cowerin’ beasties. My next step will be to create a Free Speech Yale Alumni Group on Facebook.
Kurt Schlichter has some choice words for our liberal fascist overlords.
So, the Establishment has decided to address the grievances of people who feel disenfranchised, silenced, and subjected to double standards with much more disenfranchisement, silencing, and double standards. Seems like an on-brand move for the most corrupt, unwise, and incompetent – yet remarkably arrogant – ruling caste America has ever known. Good plan – deny them the right to pick their 2024 president, clap like trained seals as corporate overlords cut off their ability to express themselves, and continue to treat their own supporters well and dissenters much, much worse. That’s sustainable. Say, let’s put out this blazing fire with this handy can of gasoline.
Yeah, they are having fun for now. While the supine GOP is tweeting hack cliches about Muh Not Who We Are, the left is trying to tighten the noose. But we’re woke. Rasmussen puts Trump’s popularity at 51%, rising after the riots. We aren’t blaming Trump for the riots. And we sure aren’t rolling over for these bastards.
Here is Kristie Higgs’s petition that got her fired. (click on the image for larger version)
Toby Young, in the British Spectator, explains how you can lose your job even for anonymous on-line dissent.
Kristie Higgs, a 44-year-old school assistant, didn’t realise that criticising the sex education curriculum at her son’s school on Facebook would get her fired. For one thing, her account was set to ‘private’, so only her family and friends could read it. For another, she was posting under her maiden name, so no one could connect her with her employer. Finally, the school that sacked her for expressing these views wasn’t actually her son’s, but another one altogether. This seems a pretty clear case of a person losing her livelihood for dissenting from progressive orthodoxy.
Kristie’s case is being heard at an employment tribunal in Bristol this week. The dispute relates to two Facebook posts from two years ago. In one, Kristie urged her family and friends to sign a petition objecting to mandatory new sex and relationship lessons in English primary schools. In the other, she shared an article by an American conservative Christian commentator criticising the promotion of ‘transgender ideology’ in children’s books. ‘This is happening in our primary schools now!’ Kristie said.
Someone circulated screenshots of these posts to Kristie’s colleagues at Farmor’s School in Gloucestershire, where she had worked for seven years, and predictable outrage followed. Senior members of staff compared her views to those of ‘Nazi right-wing extremists’, according to Kristie, and someone lodged a formal complaint with the head, claiming her posts were ‘homophobic and prejudiced to the LGBT community’. Kristie was summoned to a ‘disciplinary’ at a hotel just before Christmas, where she was cross-examined for six hours by three of the governors, supported by three members of staff. When Kristie tried to explain that her objection to her son being taught that a woman could have a penis was rooted in her Christian beliefs, she was told: ‘Keep your religion out of it.’ After the hearing she was dismissed for ‘illegal discrimination’, ‘serious inappropriate use of social media’ and ‘online comments that could bring the school into disrepute’.
There are two free speech issues at stake here. The first is whether an employer’s social media policy, limiting what employees are allowed to say on Facebook and other platforms, can legitimately be extended to private conversations, particularly when the employee has taken steps to disguise her identity. On the face of it, that looks like a breach of Article 8 of the European Convention on Human Rights, which protects the right to privacy. The second is whether Kristie’s comments constituted ‘illegal discrimination’ as defined in the UK’s Equality Act 2010. Did they create an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for LGBT colleagues, even though they wouldn’t have known about them if they hadn’t been circulated by someone trying to get her into trouble? Or is she permitted to express such views by Article 10 of the ECHR, which protects the right to freedom of expression?
Kristie’s legal team can also appeal to the Equality Act, which makes it illegal to discriminate against employees for their possessions of various ‘protected characteristics’, including religion and belief. Her lawyers will argue she lost her job because she expressed her belief about the immutability of natal sex. However, when Maya Forstater’s lawyers made that argument in an employment tribunal last year — she was sacked for refusing to use trans women’s preferred pronouns — the judge said her gender critical beliefs weren’t ‘worthy of respect in a democratic society’.
Kristie’s treatment is -obviously deeply concerning for believers in free speech, but there’s another aspect of her case that worries me. According to a recent white paper, a Bill will soon be brought before parliament empowering Ofcom to regulate the internet. Under the proposals, Ofcom will be able to impose punitive fines on Facebook for not removing content that political activists find ‘offensive’, even if it doesn’t fall foul of any existing speech laws.
Twitter already bans users for misgendering trans people, so it won’t take much of a push for all the social media companies to ban people for criticising trans ideology. The Free Speech Union has just produced a briefing paper warning of the dire consequences for free speech if the government’s internet censorship plans become law, and I urge you to read it. Soon, it won’t just be Kristie Higgs who is punished for challenging woke dogma. It will be all of us.
Last month, on Facebook, in the course of a heated political discussion, I responded to an interlocutor’s uncomplimentary remarks by referring to him as “a white trash communist.” Facebook immediately took his side and froze my account for 30 days.
There was nothing new here. Pretty much any insult to liberals or liberal shibboleths will incur the wrath of Facebook’s zampolit censors. They start with 24 hours, then give you a week, and after a few offenses it’s 30 Days in the Hole for you.
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Like many other outspoken conservatives, I responded simply by rolling up a second pseudononymous account. It only required a second email address and phone number.
My 30-Day suspension runs on until mid-month, and lo and behold! on Monday, I shared the above anti-BLM meme, and my second account was immediately punished with 7 Days for violating Community Standards with “hate speech.”
I’m out of extra phone numbers, and Facebook has evidently gotten wise to dissidents like myself creating alternative accounts. My attempts at creating Account 3 all failed.
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All this has had the positive effect of bringing me to my senses. I’ve been wasting a few hours every day creating content for Mark Zuckerberg for free, responding like a laboratory rat to the positive reinforcement of “likes” and comments from friends, and indulging my argumentative disposition by correcting the fallacies of liberals. Not only is Facebook an incredible time sink, supporting it really amounts to accepting tacitly the petty dictatorship of Zuckerberg and his apparatchik nincompoops.
This is it for me. I will, henceforward, skim Facebook for new blog fodder, cynically use it to promote Never Yet Melted by linking posts, and that’s it. I’m otherwise posting, commenting, or sharing nothing. Mark Zuckerberg go screw yourself!
Andrew is bending over backwards acrobatically to be nice about it, but he clearly didn’t fall. He was pushed.
What has happened, I think, is relatively simple: A critical mass of the staff and management at New York Magazine and Vox Media no longer want to associate with me, and, in a time of ever tightening budgets, I’m a luxury item they don’t want to afford. And that’s entirely their prerogative. They seem to believe, and this is increasingly the orthodoxy in mainstream media, that any writer not actively committed to critical theory in questions of race, gender, sexual orientation, and gender identity is actively, physically harming co-workers merely by existing in the same virtual space. Actually attacking, and even mocking, critical theory’s ideas and methods, as I have done continually in this space, is therefore out of sync with the values of Vox Media. That, to the best of my understanding, is why I’m out of here.
Two years ago, I wrote that we all live on campus now. That is an understatement. In academia, a tiny fraction of professors and administrators have not yet bent the knee to the woke program — and those few left are being purged. The latest study of Harvard University faculty, for example, finds that only 1.46 percent call themselves conservative. But that’s probably higher than the proportion of journalists who call themselves conservative at the New York Times or CNN or New York Magazine. And maybe it’s worth pointing out that “conservative†in my case means that I have passionately opposed Donald J. Trump and pioneered marriage equality, that I support legalized drugs, criminal-justice reform, more redistribution of wealth, aggressive action against climate change, police reform, a realist foreign policy, and laws to protect transgender people from discrimination. I was one of the first journalists in established media to come out. I was a major and early supporter of Barack Obama. I intend to vote for Biden in November.
It seems to me that if this conservatism is so foul that many of my peers are embarrassed to be working at the same magazine, then I have no idea what version of conservatism could ever be tolerated. And that’s fine. We have freedom of association in this country, and if the mainstream media want to cut ties with even moderate anti-Trump conservatives, because they won’t bend the knee to critical theory’s version of reality, that’s their prerogative. It may even win them more readers, at least temporarily. But this is less of a systemic problem than in the past, because the web has massively eroded the power of gatekeepers to suppress and control speech. I was among the first to recognize this potential for individual freedom of speech, and helped pioneer individual online media, specifically blogging, 20 years ago.
And he’s right: if an anti-Trump, anti-Bush Quizling ersatz conservative, who additionally plays for the wrong team, is not an acceptable token in Establishment journalism today, things have reached one helluva pass. Andrew, of course, needs to sit back and reflect on his own part, in the role of sell-out, in letting matters proceed so far.
Andrew finds himself rather in the position of the late German pastor Martin Niemöller:
“They came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up.”
Unbelievable. Not only did they *arrest* a child merely for saying ugly things to a celebrity of color, but they're *bragging* about having arrested a child for words. Ugly words, yes, but words. He's 12 years old. What are you, @wmpolice, the Stasi? https://t.co/z1ENthqT8r
