On Thursday morning, Judge Laurence Silberman sent an unusual email to almost every federal judge in the United States urging them to blacklist students who protested a recent event at Yale Law School. “The latest events at Yale Law School in which students attempted to shout down speakers participating in a panel discussion should be noted,” Silberman wrote. “All federal judges—and all federal judges are presumably committed to free speech—should carefully consider whether any student so identified should be disqualified for potential clerkships.”
A Ronald Reagan nominee and aficionado of judicial listservs, Silberman appears to enjoy kicking up controversy over email. His strongly worded email was in response to a March 16 article by Aaron Sibarium of the Washington Free Beacon, a conservative outlet, which claimed that “more than 100 students at Yale Law School attempted to shout down a bipartisan panel on civil liberties.”
But interviews with participants and witnesses at the demonstration, as well as multiple videos, reveal that this account distorts reality. The students made their point at the very start of the event and walked out before the conversation began. Their exercise in free speech, however rowdy or distasteful, did not prevent the panelists from expressing their views. And their demonstration did not—contrary to the Free Beacon’s reporting—require administrators to summon the police.
The March 10 event at the heart of this controversy was a conversation between Monica Miller of the American Humanist Association and Kristen Waggoner of the Alliance Defending Freedom, hosted by the Yale Federalist Society. Waggoner’s organization supports criminalization of homosexuality, nullification of same-sex marriages, an end to same-sex adoption, and a ban on gender-affirming health care for minors, among other anti-LGBTQ policies. YLS students opposed the Federalist Society’s decision to invite a member of an organization that seeks to, for instance, imprison gay people and trans-friendly doctors.
But the group of roughly a hundred students who protested the event expressly chose not to shout the panelists into silence. Instead, they stayed within YLS’s “three strikes” rule, which governs the line between expressing your own views and silencing others. Under this rule, students who disrupt an event are first given an extensive warning laying out the school’s free speech policy. If they continue with their disruption, they’re given a shorter, second warning. At that point, if they do not relent, administrators must ask them to leave—or call the Yale police, who are authorized to remove them if necessary.
In a lengthy video of the event and protest reviewed by Slate, as well as a shorter video provided to Slate by an audience member, you can see how this policy played out. When professor Kate Stith rose to introduce the panelists, students interrupted her to protest Waggoner’s presence. Stith then delivered the first warning verbatim, reading from the approved script. Shortly thereafter, the protesters quietly filed out of the room in protest. Stith did not issue a second or third warning; she didn’t have to, because the students had made their point, then walked out, as planned.
Reasonable people can disagree about the students’ decision to disrupt Stith at the outset, but it is clear that they did not prevent the event from moving forward. Some students did ask pointed questions of Waggoner during Q&A, but these remarks were not vulgar or violent. There was some back and forth between audience members and panelists during this portion, but in the form of debate, not crude heckling.
Once outside in the hallway, students continued their protest, and noise undoubtedly bled into the room. But it’s debatable this noise made it “difficult to hear the panel,” as the Free Beacon reported. The conversation remained audible inside the room, albeit with the din of a demonstration just outside. (In response to an inquiry from Slate, Free Beacon editor-in-chief Eliana Johnson said: “The efforts by the protesters to disrupt the event from outside the room were not a total failure.”) This video, taken by an audience member, shows how the panelists could be heard over the chanting in the hall.
It is also incorrect that, as the Free Beacon reported, “police were eventually called to escort panelists out of the building.” Yale officers attended the event from the start because Waggoner brought her own security guards, and the school’s officers often attend an event when a speaker brings private security. Yale Police Department assistant chief Anthony Campbell said the officers were there “to protect the safety of the demonstrators and those they were protesting.” They did not “arrive” when “the panel concluded” to protect the participants from protesters, as the Free Beacon indicated. (Johnson told Slate that the outlet stands by its reporting and is “immensely proud of Aaron’s reporting on YLS.”)
In a statement provided to Slate, YLS spokesperson Debra Kroszner laid out the events of the day as they actually occurred. “At the very start of the March 10 event, when students began to make noise, the moderator read the University’s free speech policy for the first time,” Kroszner said. “At that point, the students exited the event, and it went forward. When students made noise in the hallways, administrators and staff instructed students to stop. During this time, Yale Law School staff spoke to YPD officers who were already on hand about whether assistance might be needed in the event the students did not follow those instructions. Fortunately, that assistance was not needed and the event went forward until its conclusion.”
The Free Beacon’s depiction of raving protesters hellbent on shutting down free speech at any cost thus appears to be an exaggeration. Yet ADF is already raising money off its dramatic retelling of the story. And Waggoner appeared on Fox and Friends on Friday morning to bemoan the death of civil discourse among law students. Probably the worst that can be said about the demonstration is that it briefly disrupted a professor’s introduction then annoyed panelists and audience members when it moved to the hall. The dispute therefore boils down to a question of how loud protesters can get before their exercise of free speech infringes on someone else’s—specifically, protesters who are physically removed from the event they oppose. It may be reasonable to argue that the panelists had a right to speak without any audible counterprotest. But that’s not what critics of the demonstration are arguing.
It’s easy to see why a skewed version of the story is now dominating conservative media. This version plays right into current conservative fears about ostensible liberal censorship on college and law school campuses. Left-leaning students, the narrative goes, are silencing their conservative peers, adopting an illiberal view of free speech that seeks to stamp out dissent from the right. (In reality, conservative law students are, at a minimum, equally guilty of suppressing free speech.)
Silberman, who serves as a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, appears to have bought into this panic. His Thursday email—sent to every judge currently serving on a federal district or appeals court—prompted a mixed response. Judge John Walker, a George H.W. Bush nominee on the 2nd U.S. Circuit Court of Appeals: “Thank you for your email. I couldn’t agree more.” Judge Donald Graham, a George H.W. Bush nominee on a district court in Florida, shot back: “How would we as judges all over the country know about the activities of a particular student? Shouldn’t there be a finding that a student acted inappropriately at least by the institution of higher learning. I don’t intend to get into the fact finding process. I have enough trials in my District.”
Finally, Judge Andrew Gordon, a Barack Obama nominee on the district court in Nevada, closed the conversation by writing: “Please do not hit ‘reply all.’ It’s very distracting to receive all these comments when I’m trying to get my work done. And it clogs up my email inbox.”
Other conservative outlets have already endorsed the Free Beacon’s version of events, including Fox News, which repeated the false claim that police were called to escort the panelists through the crowd. Silberman has previously praised Fox News while condemning mainstream media as “virtually Democratic Party broadsheets.” Although Silberman framed the March 10 protest as an assault on “free speech,” it did not prevent anyone from stating their views. There is only one plausible threat to free speech here: the possibility that federal judges will blacklist law students from clerkships because they expressed their beliefs too loudly.
