The Washington PostDemocracy Dies in Darkness

Opinion Stanford students lost a chance to learn when they shouted down a judge

Pedestrians walk on the campus at Stanford University on April 9, 2019. (Jeff Chiu/AP)
5 min

“Is the juice worth the squeeze?” That’s the question that Tirien Steinbach, Stanford Law School’s associate dean for diversity, equity and inclusion, posed to Stuart Kyle Duncan regarding the federal appeals court judge’s now-­­­notorious visit to campus earlier this month.

By this, Steinbach meant that Duncan should consider whether his appearance at Stanford was worth the obvious rancor and ferment it had created. Named by President Donald Trump to the 5th Circuit, Duncan is controversial not only for his previous advocacy against LGBTQ rights but also for his rulings, including a 2020 case in which he refused to call a transgender woman by the female pronouns.

“I mean, is it worth the pain that this causes and the division that this causes?” Steinbach asked Duncan, who was invited to address the school’s chapter of the Federalist Society. “Do you have something so incredibly important to say … that is worth this impact on the division of these people who have sat next to each other for years, who are going through what is the battle of law school together, so that they can go out into the world and be advocates. And this is the division it’s caused. When I say ‘Is the juice worth the squeeze?’ That’s what I’m asking. Is this worth it?”

Now Steinbach has posed that query again, in the opinion pages of the Wall Street Journal. “I was re­fer­ring to the re­spon­si­bil­ity that comes with free­dom of speech: to con­sider not only the ben­e­fit of our words but also the con­se­quences. It isn’t a rhetor­i­cal ques­tion,” Steinbach wrote. “I believe that we would be bet­ter served by lead­ers who ask them­selves, ‘Is the juice (what we are do­ing) worth the squeeze (the intended and un­in­tended con­sequences and costs)?’ I will cer­tainly con­tinue to ask this ques­tion my­self.”

This is the wrong question, and while there’s been enough appropriately horrified commentary about the unacceptable behavior of the Stanford students who heckled Duncan, it’s important to explain why. It involves the difference between civility and self-censorship.

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Civility is important and too often lacking, as the Stanford incident itself demonstrated — both the students and the judge apparently missed some important childhood lessons on that score. Duncan was shouted down; as he entered the classroom to give his talk, he said, one protester yelled, “We hope your daughters get raped.” Duncan’s response can be safely described as injudicious. “You are an appalling idiot,” he told one student.

Self-censorship is dangerous. It reinforces the notion that we should stay silent in spaces where our views might not be welcomed. This flattens discourse and homogenizes thought. In spaces where provocation is essential — opinion columns, universities and law schools in particular — it discourages the challenging of orthodoxy in favor of the comfortable cosseting of preexisting views.

Duncan himself offers a useful encapsulation of the distinction. I first encountered him in 2020, when he went out of his way to be disrespectful to a transgender prisoner who asked that her name be changed in the prison system. Duncan not only rejected the inmate’s petition — he disregarded her request that she be referred to by the female pronouns.

And he wrapped his incivility in the astonishing, unconvincing garb of maintaining the appearance of judicial impartiality — this from a jurist who had spent much of his previous legal career litigating against gay and transgender rights.

If he were to accommodate the prisoner’s request to be addressed by the pronoun of her choice, Duncan warned, “the court may unintentionally convey its tacit approval of the litigant’s underlying legal position. Even this appearance of bias, whether real or not, should be avoided.”

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This is a flimsy excuse for intolerance and a lack of simple decency toward a fellow human being. Duncan should not have been shouted down; Stanford President Marc Tessier-Lavigne and law school Dean Jenny Martinez were correct to apologize to him. But it is hard to avoid appreciating a certain rough justice in the situation. Civility is as civility does.

But should Duncan, as Steinbach suggested, have chosen to turn down the Federalist Society’s invitation and voluntarily absented himself from Stanford’s campus? No — a thousand times no — not for his own good but for the very benefit of the students who are most offended by his position.

How much better off would they have been to allow him to speak, and to respectfully challenge his reasoning in the pronoun case? The chances of changing Duncan’s mind are minimal, but there is zero possibility of that in the absence of dialogue.

More important, hearing the views of the other side can only aid in rebutting them. If you cannot tolerate listening to arguments with which you disagree, if you prefer to have your convictions reaffirmed rather than challenged, you are going to be less capable of presenting your case, not more.

We are all better off in a world where we don’t have to second-guess ourselves before venturing an unpopular opinion. There is too much of this in our current environment, not too little. Think about how you phrase something, yes, but not about whether you ought to say it. Because the alternative is pallid mush, short on honesty and condemned to vapidity. The juice is always worth the squeeze.