Walk of Shame (Is Protected Speech)

"It's not 'Letters from a Birmingham Coffeehouse.'"

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Stanford Law School students want to have it both ways on speech rights, which means you get to enjoy a firey sequel to Tuesday’s epic, infinity-long episode! Plus…

 -Your comments on the Stanford Squeeze, answered

-Stanford dean getting the Game of Thrones walk of shame treatment

-Sarah is on a journey

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  1. Jrtownson

    Regarding the Amy Wax issue: now that she is host, Sarah needs to invite Glenn Loury on the show to debate the alleged sins of Wax and the broader issue of the existence/role of systemic racism in US. Both Sarah and David seem to generally agree on this broader question, I think bringing Glenn on would make for a very constructive and honest dialogue.

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  2. John.Cornell

    First time commenter, long time listener, paid up for quite some time. Is it too much to ask that if you're not going to meet your normal posting schedule of Tuesdays and Thursdays that you put something on this web page?

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  3. Tom Johnson

    This is bit of a tangent but I just read this article in Politico about the Federalist Society. It may already be on your all's radar but I thought I'd share in case it isn't.

    "The Federalist Society Isn’t Quite Sure About Democracy Anymore," by Ian Ward (3/17/23)

    While I don't feel I know enough about FS to judge the article's accuracy or fairness, I'd be interested to know what others here think.

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    1. Mmorrissey001

      Conservative publications didn't think much of it. It seemed to me to be one of what Jonah Goldberg has called "conservatives in the mist" articles. Not much that I saw on legal reasoning. Although the tendency toward conservative activism is something to watch. At one point the writer was surprised attendees of a mixer were wearing cowboy boots. They were in Texas.

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    oric97

    Ok, so...totally random question. Is there a way I can search thru just the AO portion of the website? I haven't committed all the AO episodes to memory just yet (working on it) so it would be great to have an advanced search feature to pinpoint particular AO episodes. Would be neat to pump the episodes thru the ChatGPT api to transcribe and be able to do contextual searches. Bonus points if you could add a tag for episodes when David turns visibly beet red because Sarah made a joke with some innuendo -- you can just feel it thru the podcast. Oh, how glorious.

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    OK Steele

    I agree Judge Duncan can act as he did but shouldn’t have. Additionally it’s somewhat pathetic to me that a man of his age and distinction holds no remorse about that behavior, regardless of the circumstances. One of my favorite rules from Sarah is the “the principle exists for the moment you want to make an exception to it.” Like Burke’s birds of prey, it is corrupting to the soul to justify behavior you would otherwise consider beneath your character, in response to the actions of someone else. I find this no different.

    What are the chances that anyone predisposed to comment in support of the judge sees this as a “bad facts make bad law” situation and would rather wait to release a statement in response to a situation where the judge wasn’t as reactionary or combative.

    I would imagine if someone like Justice Roberts wanted to comment on something like this, that his desire to completely distance himself from actions like calling students idiots, would take precedent.

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    1. Jrtownson

      Based on what I heard in podcast, I agree there's a good chance Judge Duncan violated civil discourse principles. How would you rate the student's and administrators behavior? The word "idiots" comes to mind...

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        OK Steele

        I could talk ad nauseam about my levels of disgust with the actions of the students and administrators, but I think those points have been belabored by many. The point of this comment was to opine on personal principles of conducts and standards of decency, but maybe if I rephrase it you'll find it more persuasive.

        I do not believe that there are any excuses that justify actions and behaviors violating personal standards of conduct. Just as I do not think the students and administrators would be justified in their behavior if the speaker was the devil himself, I do not believe that there is any level of protest that justifies a Federal Judge speaking to students the way Judge Duncan did.

        It may just be a differing of opinion. Maybe you think if the speaker was an anti-Semite, or a racist, or a pornstar, or Adolph Hitler that the protest would be justified. I don't. And I feel the same about the Judge's actions in response to the protest.

        In general I think what causes the most disturbing, distasteful, and rude discourse and behavior in our society is that people decide certain types of people, actions, ideas etc. do not merit polite and courteous discourse, and then in response, as opposed to being the bigger person, the language gets a little more rude and a little less serious and this process continues, and everyone justifies rude and childish behavior because "look how bad this guy was first" and there's no discernible place to point for who started it in the first place.

        It's not an excuse I accept. And maybe I'm wrong not to accept it but I am perplexed as to where to draw the line of what actions and behaviors merit violating my principles of personal conduct.

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        1. Jrtownson

          Ok but don’t forget who was the angry mob and who was the individual being mobbed. It easy to be principled in concept but when put in the Judge’s position it’s only human to react the way he did.

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  6. Rudavis

    Sarah asked if the 6-Month List Effect has been studied statistically. I think this report from 2020 does that:

    https://www.cornelllawreview.org/wp-content/uploads/2020/07/Siegelman-et-al-final.pdf

    The results are summarized on pages 390-392. I'm not a lawyer, so I might be reading this wrong, but it seems:
    - There is a 20-30% spike in case "closures" in the period just before the List deadline
    - There appears to be a "mothballing effect" whereby 20% of motions on a list are not decided until the last three weeks before the next deadline
    - Cases decided "in the immediate shadow of the List deadline" are 18% more likely to favor defendants
    - List Week Cases have a 40% higher likelihood of being remanded on appeal ("albeit from an extremely low base level")
    - List Week "eligible motions" are more likely to be denied.

    Does this sound plausible? The authors say they don't see evidence of strategic shifting of filings, so maybe the chances of Moneyball-type manipulation is low. The authors offer some suggestions for avoiding negative incentives.

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  7. Davidcopeland57

    I was a U.S. District Court law clerk in 1985-86. We had a 60-day list as I recall, though there may have also been a 6 month list. I would say that, overall, the list had a positive effect for the reasons stated by David French. I can only think of one instance when rushing caused a mistake, and it had nothing to do with the list (case involved a PI motion). I do recall getting the Court off the 60-day for one case by persuading the Judge to issue a brief opinion certifying the key issue for interlocutory appeal.

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    Ben Connelly

    Commenters were surprised that Judge Duncan wouldn’t consider hiring the students who protested him? Why is that in any way surprising or problematic? Boy, if someone spits in my face you can be pretty sure I’m not going to turn around and offer him or her a job.

    Moreover, the conduct of these students was childish and unprofessional. If I were an employer I’d absolutely say they can take their resumes elsewhere. If a potential employee exhibited that level of lack of maturity, I’d feel perfectly justified telling him or her to take a hike. These kids (some of whom are probably older than me) need to do some growing up.

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  9. David S

    So I'm going to comment on Amy Wax because I paid for this comment section!

    I think most of the comments Sarah read cross the line into harassment, especially when directed at specific students. I think there is and should be room to have a discussion about whether affirmative action benefits black people or actually hurts for reasons Clarence Thomas and others explain. Black people should be present for that discussion (it's one of those difficult discussions we always want to have), but you shouldn't be using a specific student as an example. Also, regardless, some of her comments are definitely bigoted and racist.

    I also wanted to point out that I think the extensive academic use of terms like "white privilege" or that a person is only where they are "because they are white," or that white people are collectively guilty of "white supremacy," or telling a student to "check their privilege," is also race-based harassment. Just like the pros and cons of affirmative action, I think it's fine to discuss the concept or theory of white privilege and white supremacy, but when a professor has that world view and puts it to use in class, it should be just as actionable.

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    1. Kurt.Woolley

      One of the examples Sarah gave was when Amy Wax responded to an African-American student's question about whether she thinks there is a 'cognitive difference' with the metaphor of two plants growing in the same place and one growing taller than the other - though they weren't explicit it was included in the list that were generally considered as harassment. I actually couldn't decide how I felt about that particular example because even though it was 'directed at a particular student' it was a direct response to the student who asked for the opinion. Not sure you can be faulted for answering a direct question especially because she seemed to try and tone down the response to make it less harsh than it could have been. What do you think?

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    2. MathewA

      Actually I think whether any of those statements are harassments depends on the context. Merely making statements in a conversation isn't harassment.

      For example, I heard Amy Wax discussing a number of those concepts on the Glen Loury podcast. Not harassment. It's all in how they are used. Just stating an opinion in a conversation doesn't count.

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  10. Alvin

    My takeaway from reading the updated Ho opinion is that "you can't take away his guns as part of a restraining order, but you can lock him up for probable cause of having commited domestic abuse which has the side affect of taking away his guns". As David said, it just doesn't make sense the much more substantial deprivation of liberty is the sensible outcome.

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