50.50: Opinion

Journalists are enabling extremism by ‘both-sides-ing’ free speech row

OPINION: Stanford Law School and legacy media appear to fetishise ‘civility’ over human rights and democracy

Chrissy Stroop
Chrissy Stroop
19 April 2023, 9.00am

Protesters at a Federalist Society gala diner in New York hold banners and placards with names of conservative judges endorsed by the group, 16 January 2020


Tayfun Coskun/Anadolu Agency via Getty Images

Having earned a Master’s and a PhD at Stanford University, I’m under no illusion that the place is a bastion of progressivism.

After all, Condoleezza Rice was the university’s provost from 1993 to 1999. She later returned to Stanford after her tenure as a warmongering villain in the George W Bush administration, and now heads its conservative Hoover Institution. And that same institution gave a lovely sinecure in 2007 to Donald Rumsfeld, Dubya’s former defence secretary and one of the handful of people even more directly responsible than Rice for the heinous torture and human rights abuses carried out by the US in Iraq and at Guantanamo Bay.

In recent years, Stanford has been responding to concerns about political polarisation in the US by pushing notions of “intellectual diversity” (sometimes also called “ideological diversity” or “viewpoint diversity”), which essentially means taking extraordinary measures to make conservatives feel more included. Rice has played an important role in the relevant discussions at Stanford.

But polarisation has been fomented primarily by the increasingly uncompromising and authoritarian right, with bad-faith actors taking advantage of journalists’ impulse to treat ‘both sides’ of any controversy as legitimate. The resulting false equivalence that characterises the elite public sphere has led to the dangerous normalisation of extremism. It’s resurgent authoritarianism, rather than political polarisation, that represents the fundamental threat to democracy and human rights in the United States, and when institutions go out of their way to accommodate authoritarians, they undermine what legitimate diversity, equity, and inclusion initiatives do – levelling the playing field by by extending influence and representation to underrepresented groups.

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Diversification of leadership in terms of race, ethnicity, sex, gender, sexuality and disability tends to bring with it a diversity of viewpoints that is lacking among powerful elites in a white man’s world. Calls for “intellectual diversity”, then, represent a coded reactionary effort to reclaim power by the beneficiaries of white patriarchal domination, who may feel oppressed by authentic diversification even though they are not.

To be sure, at many universities, a majority of faculty – including white men – espouse liberal or leftist politics. But we should be conscious of the extent to which calls for so-called “intellectual diversity” in any discussion on diversity, equity and inclusion (DEI) counter recent gains made by marginalised groups, by channelling power back to dominant groups.

Working to maintain “intellectual diversity” may represent a ‘genteel’ or ‘civil’ approach to pushing back from the right, but it still advances the same goal as Florida governor and wannabe dictator Ron DeSantis attempting to ban university DEI programmes.

The disconnect becomes apparent in Rice’s lament about the lack of diversity among Hoover fellows, who trend – you guessed it – old, white and male. Efforts to diversify the Hoover Institution, while it continues to fetishise unfettered free enterprise, are as inherently hamstrung as efforts to diversify the Republican Party – because both espouse politics that primarily benefit white men while harming marginalised groups. This is clearly reflected in the demographic data about who votes Republican.

Kyle Duncan speech

This muddled thinking about intellectual diversity, political polarisation and, of course, free speech was on display in a recent controversy at Stanford Law School – and in the frenzied media response afterwards.

The brouhaha arose over the handling of student protests against a lecture last month by federal appeals judge Kyle Duncan. A rabidly right-wing Trump appointee, Duncan spent his career as a lawyer litigating the Christian right’s pet cases against LGBTQ rights – and even against the contraceptive coverage mandate included in Barack Obama’s Affordable Care Act of 2010. As a judge, he has refused to honour a transgender defendant’s chosen pronouns.

Duncan was invited to the law school by the Stanford chapter of the notoriously right-wing Federalist Society. Upon encountering – completely expected – opposition to his anti-LGBTQ, anti-equality views, with law students shouting out questions and criticisms that disrupted the event for a short time, a belligerent Duncan threw an almost certainly calculated tantrum, even calling one of the student protesters “an appalling idiot”.

Disappointingly but unsurprisingly, the law school decided to punish Tirien Steinbach – the assistant dean for diversity, equity and inclusion, and a Black woman – for her approach to de-escalating the tensions. Steinbach stated that she agreed with the protesters’ criticisms even while asking them to let Duncan speak, adding that students could leave if they felt so inclined (many did).

In addition to suspending Steinbach, who was eventually forced to say that she “got the balance wrong” in how she handled her intervention, Stanford Law School dean Jenny Martinez issued an apology to Duncan (as did the university president). She also released a lengthy memo on “free speech” that, in my view, failed to address all the salient context and thereby contributed to the normalisation of extremism that enables America’s anti-democratic forces.

Outrage from right-wing media

Predictably, the right-wing media stirred up outrage as Duncan – a powerful bully appointed to his position by another powerful bully – made the rounds playing the victim of supposed student “bullies”.

Right-wing influencer Candace Owens threw a tantrum of her own on Tucker Carlson’s show on Fox News, claiming that “college campuses have become a criminal enterprise” where kids are “told they can’t say anything, and everything they do is wrong”.

What’s worse than this predictable right-wing nonsense is the extent to which it has shaped the mainstream narrative on free speech, with both the law school and major news outlets capitulating to extremists.

Major media figures decried the lack of “civility” of the student protesters, some of whom shouted that people like Duncan and Federalist Society members do not belong at Stanford. Many commentators pointed out that these students violated the Stanford Law School’s disruption policy, which allows the carrying of signs during a lecture but not verbal disruption.

The New York Times at least recognised that Steinbach has a strong record of supporting “intellectual diversity” and had even cultivated a friendly relationship with the campus Federalist Society, but, like other major media outlets, it failed to even ask whether Duncan’s speech might have been a valid target for civil disobedience, or to consider the reasons why it might be.

These reasons include the fact that Duncan is one of numerous right-wing activist judges foisted on to the federal courts by Donald Trump in collaboration with Mitch McConnell, the Senate majority leader at the time. During Obama’s tenure, McConnell obstructed as many federal judicial appointments as possible in the precise hope that a Republican president could stack the federal courts, including the Supreme Court, with right-wing ideologues. During Trump’s presidency, McConnell fast-tracked these appointments.

The Federalist Society also played a key role here, although the New York Times, naturally, failed to consider the case for treating the organisation as the pariah it deserves to be. The Federalist Society provided the Trump administration with names of its approved candidates for judicial appointments. All six of the current nine-member Supreme Court’s right-wing majority are members of the Federalist Society. Four of them were feted by the society after the court overturned Roe v Wade. Finally, influential members of the society, including senator Josh Hawley and Texas attorney general Ken Paxton, supported Trump’s attempt to overturn the 2020 election.

Stanford Law School, Stanford University and the legacy media are doubling down on the fetishisation of ‘free speech’ and ‘civility’

It was that connection to the 6 January insurrection that led former Stanford law student Nicholas Wallace to produce an obviously satirical flyer lampooning the Stanford branch of the Federalist Society, which responded by accusing him of “defamation” and nearly getting his degree withheld.

In the aftermath of that series of events, Wallace called for a boycott of the Federalist Society, which is far more sensible than the way the group is being treated in the media now, in the wake of Duncan’s visit to the law school.

“In the six months since the [6 January] attack,” argued Wallace in July 2021, “the Federalist Society leaders who sought to overturn the results of a free and fair election have faced virtually no consequences, and the organi[s]ation itself has refused to condemn the insurrectionists in its ranks. An organi[s]ation that tolerates efforts to undermine democracy should not be permitted to remain in good standing in the legal community.”

The Federalist Society plays an important role in America’s right-wing backlash against civil rights gains, and the radical reshaping of the federal judiciary by Trump and McConnell with Federalist Society influence is just as much a means of attacking democracy as the 6 January coup attempt itself. These are the points we should be considering in response to student protesters disrupting Duncan’s talk.

Instead, Stanford Law School, Stanford University and the legacy media are doubling down on the fetishisation of ‘free speech’ and ‘civility’ – an approach that normalises the destruction of US democracy and paves the way for an anti-democratic future in which marginalised people suffer.

Even at a university that is properly devoted to academic freedom, it is surely possible to avoid directly enabling American authoritarianism without enforcing an unacceptable institutional orthodoxy.

By contrast, what is not possible – so long as elite institutions, both media and educational, continue to coddle the anti-democratic right – is the overcoming of polarisation and the restoration of functional democracy to the United States. Those who value ‘civility’ may find open conflict like that between Duncan and SLS student protestors uncomfortable, but excessive conflict aversion only sweeps polarisation under the rug. With democracy and human rights themselves at stake, the only sustainable and just way to deal with America’s festering cold civil war is to see and acknowledge the conflict for what it is – and to take sides.

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