My only visit to the Stanford University Law School was in 2007 to present oral argument to a three-judge panel of the Federal 9th Circuit Court of Appeals in the most important case of my career in constitutional law: Good News Employee Association v. City of Oakland. My small Temecula-based law firm, of which I was managing partner, represented two African-American Christian women whose attempt to organize a Christian alternative to the recently formed Gay and Lesbian Employee Association (GLEA) was brutally squashed by the Oakland city agency of which they were long-time employees. Although the GLEA had been enthusiastically welcomed by the city government, and allowed to recruit members using the city-wide employee email directory, when our clients posted a flyer in their workplace announcing the intention to form a Christian alternative, it was immediately removed and our clients threatened with termination for any future posting of "homophobic" content. That was in 2003 if memory serves.
We filed our complaint in the proper venue, the U.S. Federal Court in San Francisco, where it was (of course) assigned to the still in-the-closet Judge Vaughn Walker, the very man who would years later strike down Proposition 8 (California's ban on "gay marriage" by popular vote on a citizen ballot initiative) and then retire to "come out" as a homosexual to nary a whisper of suggestion by any news media or pundits that he should have recused himself for conflict of interest. In retrospect, therefore, we understood why in our case he outrageously ruled against our clients, claiming that their free speech rights as pro-family Christians in the workplace were "vanishingly small." *
The oral argument in our appeal of the Good News case was, surprisingly, held in the Moot Court room at Stanford Law School, because (I believe) the ultra-liberal three-judge panel wanted to entertain the liberal law students with the judicial equivalent of a gladiatorial slaughter of Christians. Going in, I knew our loss was pretty much a foregone conclusion, but one should always leave room for a miracle from God, and, hey, even as a sacrifice to the leftist mob, how many (little-guy) lawyers ever get to argue a truly righteous free-speech case before the second-highest court in the land? Sure enough, the panel affirmed Walker's act of "vanishingly small" integrity, and in another surprising move that proved just how constitutionally bankrupt was his legal reasoning, they declined to officially publish their ruling – meaning it couldn't be cited in other cases where its false logic could be eviscerated.
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I offer this firsthand testimony to show that Stanford's recent faculty-supported riot of left-wing law students to successfully "cancel" the speech of sitting federal Judge Kyle Duncan is not some sudden social outlier but the fruit of a creeping culture of wokeness on that campus that goes back at least to the turn of the millennium – facilitated by the highest echelons of the California elite.
I'm no stranger to cancel-culture bullying; among the many times I have been treated like Judge Duncan on college campuses was a candidate debate on criminal justice at Harvard Law School during my first run for governor of Massachusetts. The student activists were just as rowdy and obnoxious as those at Stanford, and the administration was just as passive in the face of their bullying tactics. In my case, the event was not canceled because it involved a panel in which I was the only target of hate, and much of the audience was there to hear what the liberals had to say. I was thus able to turn the tables on what amounted to a captive audience, using my allotted time to confront their hypocrisy.
My chastisements, of course, had zero effect because woke liberals are, to use a term from the criminal justice lexicon, incorrigible. And that's the key fact to remember in looking for policy solutions to woke fascism. These people can't be reformed by logic or reason, and will never stop demanding conformity of the world to their ideology, so the only practical means of restoring and preserving civil discourse without resorting to authoritarian suppression of one side or the other is to defang all such zealots by strengthening and aggressively enforcing equal access free speech codes in all public venues, including meaningful punishments for anti-speech bullies. We must restore our national commitment to freedom of speech and thought, and renew our conviction that free and open debate is the best remedy for bad ideas.
When the dean of Stanford Law, Jenny Martinez, issued an apology (and affirmation of the school's commitment to free speech) to Judge Duncan, the woke mob went after her as well, lining the hall outside her office and creating what one observer called a "gauntlet" and "walk of shame" through which she was forced to pass. One hopes both Judge Duncan and Dean Martinez will have been awakened by their ordeal to the urgency of the need for campus speech policy reform.
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For their part, the cagey law students countered the free-speech argument by contending that the "heckler's veto" is also a free-speech right deserving of protection. To a point, I would agree with them. I've heckled a few deserving speakers in my time – though never to the point of shutting down their event. But to the Stanford mob my counter is that free-speech protocols are venue-specific, and the way to oppose any group's speaker event to their own members and guests is to wait for the Q&A and offer your opinions then, hold your own speaker's counter-event, and/or to hold a debate with both sides equally represented.
Fascists don't and won't respect such guidelines, so it falls to the rest of us, on both sides of the political spectrum to institute policies that preserve the right of all to be heard when it's their time to speak, and to ensure all have the equal opportunity to avail themselves of this right without fear of cancellation or bullying. If we can't restore that, the American dream is dead.
- * [Interestingly, in our San Francisco depositions of city officials (in 2004), they had insisted on the record that posting the text of Proposition 22 on the same employee bulletin board would constitute grounds for termination. Prop 22 was literally state law, passed in 2000, defining marriage as exclusively one man and one woman – again by popular vote on a citizen ballot initiative. And, coincidentally, that deposition coincided with then San Francisco Mayor Gavin Newsom's press conference in which (in a shameless display of political pandering which eventually propelled him into the governorship) he falsely claimed authority to "legalize" same-sex marriage by executive order. I watched that media circus live as a part of the crowd at City Hall. We soon filed a Writ of Mandamus against him for that, which was denied, though legal action by others succeeded in reversing it as outside the scope of his authority.]
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