Clerking and Protests Forum

[Anonymous User]

The Free Beacon article references a “flurry of open letters”—as practical advice, if you are interested in clerking for any judge to the right of Stephen Reinhardt, you should not sign your name to anything. Some judges do check them and there is very little sympathy for the students in the federal judiciary.

[Anonymous User]

Link or case cite, please. I practice First Amendment law, and I've never heard of any precedent that requires the government (as another poster pointed out, California law subjects Stanford to the First Amendment as if it was a government actor) to silence protesters so a speaker can give an uninterrupted presentation.

Granted, I've never handled a heckler's veto case, so maybe it's out there. But that's not my understanding of the concept. My understanding is that the First Amendment does not allow the government to ban Duncan from speaking because the crowd might react in a hostile manner.

The two cases I know for sure are Bible Believers v. Wayne County, 6th Cir. (written by noted conservative Eric Clay) and Stenger v. SUNY last year.

[Anonymous User]

And presentation of facts can never be in service of a political agenda?

(Sorry for anon, this is nixy)

What is objectionable or wrong about the facts reported? If you think the WFB's is misleading or inaccurate, you should point it out. I don't think WFB is non-partisan, but this appears to be a quite accurate summation of the events that occurred outside of and in Dean Martinez's classroom.

[Anonymous User]

The Free Beacon article references a “flurry of open letters”—as practical advice, if you are interested in clerking for any judge to the right of Stephen Reinhardt, you should not sign your name to anything. Some judges do check them and there is very little sympathy for the students in the federal judiciary.

I truly cannot comprehend the conservative judges (one center-right and one very-conservative) I worked for checking these letters or caring about these things. I can imagine certain clerks cross-referencing these things though. Nonetheless, the idea that Republican-appointed judges are like deeply worried about these things beyond just like general "man kids these days are soft and don't know what hearing the other side is" type-rhetoric is a product of hyper-focusing on some judges who seem to be terminally addicted to the internet and tweets about them. For every Duncan or Ho there are probably like 5 other Trump judges—yes even judges that got confirmed like 51-48—who truly do not care about these things. Both my judges probably had no idea who David Lat is and certainly do not subscribe to TLS forums and do not use twitter. Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

[butonawednesday]

The majority of Martinez’s class—approximately 50 students out of the 60 enrolled—participated in the protest themselves, two students in the class said. The few who didn’t join the protesters received the same stare down as their professor as they hurried through the makeshift walk of shame.

"They gave us weird looks if we didn’t wear black" and join the crowd, said Luke Schumacher, a first-year law student in Martinez’s class who declined to participate in the protest. "It didn’t feel like the inclusive, belonging atmosphere that the DEI office claims to be creating."

The amazing thing is that everyone wants to go to Stanford Law

Don't forget to click on the thread 8 inches down to see the reaction of Shapiro and Tender Ted in their podcasts

[jotarokujo]

The majority of Martinez’s class—approximately 50 students out of the 60 enrolled—participated in the protest themselves, two students in the class said. The few who didn’t join the protesters received the same stare down as their professor as they hurried through the makeshift walk of shame.

"They gave us weird looks if we didn’t wear black" and join the crowd, said Luke Schumacher, a first-year law student in Martinez’s class who declined to participate in the protest. "It didn’t feel like the inclusive, belonging atmosphere that the DEI office claims to be creating."

The amazing thing is that everyone wants to go to Stanford Law

Don't forget to click on the thread 8 inches down to see the reaction of Shapiro and Tender Ted in their podcasts

Yeah conservatives should stop applying to yale and stanford. They should all go to Notre Dame and be welcomed by G. Marcus Cole, who hated his colleagues while at stanford

[lavarman84]

Link or case cite, please. I practice First Amendment law, and I've never heard of any precedent that requires the government (as another poster pointed out, California law subjects Stanford to the First Amendment as if it was a government actor) to silence protesters so a speaker can give an uninterrupted presentation.

Granted, I've never handled a heckler's veto case, so maybe it's out there. But that's not my understanding of the concept. My understanding is that the First Amendment does not allow the government to ban Duncan from speaking because the crowd might react in a hostile manner.

The two cases I know for sure are Bible Believers v. Wayne County, 6th Cir. (written by noted conservative Eric Clay) and Stenger v. SUNY last year.

Neither case is on point. In Stenger, the university stopped the speaker's presentation and had him escorted out of the room supposedly for his protection. In Bible Belivers, government officials removed members of a Christian group from an Arab festival purportedly to protect the Christian group. I agree that Stanford could not remove Duncan or stop him from speaking because the crowd was heckling him or being disruptive.

However, I am unaware of any case law that compels the government to prevent people from being disruptive when a speaker is giving a presentation. Basically, the government generally cannot silence the speaker because of a hostile crowd. But I see nothing compelling it to make a hostile crowd be quiet so a speaker can offer his remarks uninterrupted.

That said, I think we can all agree that the students who were being disruptive were in the wrong. If you want to protest, do it outside the event. The FedSoc members and other attendees should be able to have their event and hear their speaker.

[Anonymous User]

Link or case cite, please. I practice First Amendment law, and I've never heard of any precedent that requires the government (as another poster pointed out, California law subjects Stanford to the First Amendment as if it was a government actor) to silence protesters so a speaker can give an uninterrupted presentation.

Granted, I've never handled a heckler's veto case, so maybe it's out there. But that's not my understanding of the concept. My understanding is that the First Amendment does not allow the government to ban Duncan from speaking because the crowd might react in a hostile manner.

The two cases I know for sure are Bible Believers v. Wayne County, 6th Cir. (written by noted conservative Eric Clay) and Stenger v. SUNY last year.

Neither case is on point. In Stenger, the university stopped the speaker's presentation and had him escorted out of the room supposedly for his protection. In Bible Belivers, government officials removed members of a Christian group from an Arab festival purportedly to protect the Christian group. I agree that Stanford could not remove Duncan or stop him from speaking because the crowd was heckling him or being disruptive.

However, I am unaware of any case law that compels the government to prevent people from being disruptive when a speaker is giving a presentation. Basically, the government generally cannot silence the speaker because of a hostile crowd. But I see nothing compelling it to make a hostile crowd be quiet so a speaker can offer his remarks uninterrupted.

That said, I think we can all agree that the students who were being disruptive were in the wrong. If you want to protest, do it outside the event. The FedSoc members and other attendees should be able to have their event and hear their speaker.

In particular, I don't read Stenger that restrictively:

"At this stage of the case, while the Court recognizes that the protestors have a First Amendment right to protest, SUNY-Binghamton officials facilitated the protest and did practically nothing to protect Plaintiffs' free speech. In effect, SUNY-Binghamton officials sanctioned the protest to denigrate into suppressive conduct, or “enforced silence.” See Whitney, 274 U.S. at 377 (Brandeis, J., concurring)."

Simply because the speaker was removed does not imply that continuing to allow the students to shout at the speaker through a bullhorn would have been acceptable. But we can agree to disagree. Nevertheless, I believe that dismissing the possibility of a valid First Amendment claim in the Stanford case is inaccurate, though, for obvious reasons, caselaw is fairly limited.

[Anonymous User]

Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

I don't know when you stopped clerking, but at least I've seen a lot of discourse among judges, including those who are not particularly conservative, regarding the increasing liberalism and intolerance law schools.

[Anonymous User]

The Free Beacon article references a “flurry of open letters”—as practical advice, if you are interested in clerking for any judge to the right of Stephen Reinhardt, you should not sign your name to anything. Some judges do check them and there is very little sympathy for the students in the federal judiciary.

I truly cannot comprehend the conservative judges (one center-right and one very-conservative) I worked for checking these letters or caring about these things. I can imagine certain clerks cross-referencing these things though. Nonetheless, the idea that Republican-appointed judges are like deeply worried about these things beyond just like general "man kids these days are soft and don't know what hearing the other side is" type-rhetoric is a product of hyper-focusing on some judges who seem to be terminally addicted to the internet and tweets about them. For every Duncan or Ho there are probably like 5 other Trump judges—yes even judges that got confirmed like 51-48—who truly do not care about these things. Both my judges probably had no idea who David Lat is and certainly do not subscribe to TLS forums and do not use twitter. Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

You are underestimating the concern within the judiciary (including liberals) about the decline of civil discourse and the rise of complete intolerance for certain viewpoints. I also think the Stanford event is legitimately unique because an active Federal judge was essentially prevented from speaking at a law school by student protestors. I have never seen or heard of anything like that before.

Judges generally don’t like it when other judges are not shown respect. There are absolutely many democratic appointees who would not consider hiring someone involved in the Stanford protests.

[lavarman84]

In particular, I don't read Stenger that restrictively:

"At this stage of the case, while the Court recognizes that the protestors have a First Amendment right to protest, SUNY-Binghamton officials facilitated the protest and did practically nothing to protect Plaintiffs' free speech. In effect, SUNY-Binghamton officials sanctioned the protest to denigrate into suppressive conduct, or “enforced silence.” See Whitney, 274 U.S. at 377 (Brandeis, J., concurring)."

Simply because the speaker was removed does not imply that continuing to allow the students to shout at the speaker through a bullhorn would have been acceptable. But we can agree to disagree. Nevertheless, I believe that dismissing the possibility of a valid First Amendment claim in the Stanford case is inaccurate, though, for obvious reasons, caselaw is fairly limited.

Stenger's facts are unique because the speaker didn't sue. The organization that put on the event did. This is the paragraph that precedes the ones you quoted:
Even as a limited public forum, the Court finds that Plaintiffs are able to sustain a First Amendment claim because it is plausible that State Defendants' conduct constituted viewpoint discrimination. Rose had previously said that College Republicans “intended to be provocative” and State Defendants were on notice that there was a planned disruption to the Laffer Event. Compl. Exs. 2, 8. Before the event, State Defendants provided demonstrators a lecture hall adjacent to the Laffer Event (and which had connecting doors to the event's lecture hall) to protest. Compl. ¶ 82. Also, UPD informed Dr. Laffer that the University would prefer that Dr. Laffer cancel the event. Id. ¶ 91. Finally, Pelletier told the private agents hired to protect Dr. Laffer that he would order them to escort Dr. Laffer out of the room if protestors approached the podium, which is exactly what happened. Id. ¶¶ 96, 118. Drawing all reasonable inferences in favor of Plaintiffs, the Court finds it plausible that State Defendants' actions effectively amounted to a cancellation of the Laffer Event and that such cancellation was not viewpoint neutral. Therefore, State Defendants' Motion to Dismiss is denied.

This is the paragraph that follows it:
By removing the speaker from the lecture hall instead of the unruly protesters, State Defendants were not only plausibly violating this basic constitutional right, but also preventing fruitful discussion-not the role of an enlightened university. See also id., 274 U.S. at 375 (Brandeis, J., concurring) (“discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”).

My reading of the case is that removing the speaker was a de facto cancellation of the event, which denied the group putting it on their First Amendment rights. Maybe I am reading it too narrowly. Maybe you're right that there's a potential claim under broader circumstances. Still, I am skeptical that a judge (or judges) would punish the government for using its enforcement discretion to not silence/punish people loudly protesting a speaking event. But hey, maybe if the facts were egregious enough the judiciary would.

[Anonymous User]

WFB is a bunch of partisan hacks but if you can't see that to a normie the Stanford kids look like a bunch of immature babies then I don't know what to tell you.

[butonawednesday]

Dershowitz just weighed in hours ago on his podcast The Dershow, March 14. Stitcher. He doesn't sympathize with the students, they even got the position of the Judge wrong on one of the cases he handled.

[Anonymous User]

In particular, I don't read Stenger that restrictively:

"At this stage of the case, while the Court recognizes that the protestors have a First Amendment right to protest, SUNY-Binghamton officials facilitated the protest and did practically nothing to protect Plaintiffs' free speech. In effect, SUNY-Binghamton officials sanctioned the protest to denigrate into suppressive conduct, or “enforced silence.” See Whitney, 274 U.S. at 377 (Brandeis, J., concurring)."

Simply because the speaker was removed does not imply that continuing to allow the students to shout at the speaker through a bullhorn would have been acceptable. But we can agree to disagree. Nevertheless, I believe that dismissing the possibility of a valid First Amendment claim in the Stanford case is inaccurate, though, for obvious reasons, caselaw is fairly limited.

Stenger's facts are unique because the speaker didn't sue. The organization that put on the event did. This is the paragraph that precedes the ones you quoted:
Even as a limited public forum, the Court finds that Plaintiffs are able to sustain a First Amendment claim because it is plausible that State Defendants' conduct constituted viewpoint discrimination. Rose had previously said that College Republicans “intended to be provocative” and State Defendants were on notice that there was a planned disruption to the Laffer Event. Compl. Exs. 2, 8. Before the event, State Defendants provided demonstrators a lecture hall adjacent to the Laffer Event (and which had connecting doors to the event's lecture hall) to protest. Compl. ¶ 82. Also, UPD informed Dr. Laffer that the University would prefer that Dr. Laffer cancel the event. Id. ¶ 91. Finally, Pelletier told the private agents hired to protect Dr. Laffer that he would order them to escort Dr. Laffer out of the room if protestors approached the podium, which is exactly what happened. Id. ¶¶ 96, 118. Drawing all reasonable inferences in favor of Plaintiffs, the Court finds it plausible that State Defendants' actions effectively amounted to a cancellation of the Laffer Event and that such cancellation was not viewpoint neutral. Therefore, State Defendants' Motion to Dismiss is denied.

This is the paragraph that follows it:
By removing the speaker from the lecture hall instead of the unruly protesters, State Defendants were not only plausibly violating this basic constitutional right, but also preventing fruitful discussion-not the role of an enlightened university. See also id., 274 U.S. at 375 (Brandeis, J., concurring) (“discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”).

My reading of the case is that removing the speaker was a de facto cancellation of the event, which denied the group putting it on their First Amendment rights. Maybe I am reading it too narrowly. Maybe you're right that there's a potential claim under broader circumstances. Still, I am skeptical that a judge (or judges) would punish the government for using its enforcement discretion to not silence/punish people loudly protesting a speaking event. But hey, maybe if the facts were egregious enough the judiciary would.

I am no First Amendment expert. But isn't the major distinction that SUNY-Binghamton is a public school and therefore its staff are state actors, whereas Stanford's staff are not?

[Anonymous User]

The Free Beacon article references a “flurry of open letters”—as practical advice, if you are interested in clerking for any judge to the right of Stephen Reinhardt, you should not sign your name to anything. Some judges do check them and there is very little sympathy for the students in the federal judiciary.

I truly cannot comprehend the conservative judges (one center-right and one very-conservative) I worked for checking these letters or caring about these things. I can imagine certain clerks cross-referencing these things though. Nonetheless, the idea that Republican-appointed judges are like deeply worried about these things beyond just like general "man kids these days are soft and don't know what hearing the other side is" type-rhetoric is a product of hyper-focusing on some judges who seem to be terminally addicted to the internet and tweets about them. For every Duncan or Ho there are probably like 5 other Trump judges—yes even judges that got confirmed like 51-48—who truly do not care about these things. Both my judges probably had no idea who David Lat is and certainly do not subscribe to TLS forums and do not use twitter. Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

You are underestimating the concern within the judiciary (including liberals) about the decline of civil discourse and the rise of complete intolerance for certain viewpoints. I also think the Stanford event is legitimately unique because an active Federal judge was essentially prevented from speaking at a law school by student protestors. I have never seen or heard of anything like that before.

Judges generally don’t like it when other judges are not shown respect. There are absolutely many democratic appointees who would not consider hiring someone involved in the Stanford protests.

I'm the anon who had the "I truly cannot comprehend" thing. On second thought, I think you're right. I didn't put much weight on the difference that it is a federal judge, but in hindsight I think I was wrong about that and the conservative judges I worked for would actually deeply care about this for that reason. So I retract that statement. I think the fact that this has now spread to federal judges will be a significant line for the non-terminally online judges.

[Anonymous User]

I am no First Amendment expert. But isn't the major distinction that SUNY-Binghamton is a public school and therefore its staff are state actors, whereas Stanford's staff are not?

The First Amendment applies to Stanford's staff because of the Leonard Law in California.

[Anonymous User]

I am no First Amendment expert. But isn't the major distinction that SUNY-Binghamton is a public school and therefore its staff are state actors, whereas Stanford's staff are not?

The First Amendment applies to Stanford's staff because of the Leonard Law in California.

Thank you!

[lavarman84]

I'm the anon who had the "I truly cannot comprehend" thing. On second thought, I think you're right. I didn't put much weight on the difference that it is a federal judge, but in hindsight I think I was wrong about that and the conservative judges I worked for would actually deeply care about this for that reason. So I retract that statement. I think the fact that this has now spread to federal judges will be a significant line for the non-terminally online judges.

Which is understandable, on one hand. On the other hand, they are government officials who are subject to criticism and protest for their actions. What I think it betrays is that people, including law students, are more and more starting to see federal judges as no different than the members of the political branches. Is that a good thing? It's debatable.

[Anonymous User]

The Free Beacon article references a “flurry of open letters”—as practical advice, if you are interested in clerking for any judge to the right of Stephen Reinhardt, you should not sign your name to anything. Some judges do check them and there is very little sympathy for the students in the federal judiciary.

I truly cannot comprehend the conservative judges (one center-right and one very-conservative) I worked for checking these letters or caring about these things. I can imagine certain clerks cross-referencing these things though. Nonetheless, the idea that Republican-appointed judges are like deeply worried about these things beyond just like general "man kids these days are soft and don't know what hearing the other side is" type-rhetoric is a product of hyper-focusing on some judges who seem to be terminally addicted to the internet and tweets about them. For every Duncan or Ho there are probably like 5 other Trump judges—yes even judges that got confirmed like 51-48—who truly do not care about these things. Both my judges probably had no idea who David Lat is and certainly do not subscribe to TLS forums and do not use twitter. Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

You are underestimating the concern within the judiciary (including liberals) about the decline of civil discourse and the rise of complete intolerance for certain viewpoints. I also think the Stanford event is legitimately unique because an active Federal judge was essentially prevented from speaking at a law school by student protestors. I have never seen or heard of anything like that before.

Judges generally don’t like it when other judges are not shown respect. There are absolutely many democratic appointees who would not consider hiring someone involved in the Stanford protests.

What’s your basis for saying there’s a concern within the judiciary about the decline of civil discourse? I don’t know that experience clerking in one courthouse really provides a basis for talking about the judiciary writ large, but you may be relying on other kinds of information, which is why I ask.

(I don’t disagree that some judges have this concern, of course, I’m just not sure how to measure that. I also agree that many judges would be hesitant to hire a clerk who’d shouted down a federal judge on the disrespect grounds. I do think there’s a lot more room for disagreement depending on whether an applicant took part in shouting down Duncan, or just in the protest of the administration’s response, or just attended the school at that time without evidence that they took part in anything. Personally I think rejecting all candidates from Stanford because of this, or from Yale because of the Yale stuff, is incredibly stupid, but it’s certainly the judge’s prerogative, and given they’re inundated with stellar candidates to begin with it’s probably not going to hurt them.)

[Anonymous User]

Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

I don't know when you stopped clerking, but at least I've seen a lot of discourse among judges, including those who are not particularly conservative, regarding the increasing liberalism and intolerance law schools.

Just another vote that I have observed this as well (though I, like others, have a limited window as a clerk). Most judges are normies who hate this stuff and this is the hottest story in the elite legal world rn. This is the sort of thing they complain about to each other at lunch. See also John M. Walker, as traditional/not-online/normal of a judge as you’re going to find, sending out an outraged reply-all about the YLS debacle.

[Anonymous User]

Yes there are more weird online people in the judiciary then there used to be but the narrative that there is some sort of deep resistance by conservative judges against leftist law students is bizarre.

I don't know when you stopped clerking, but at least I've seen a lot of discourse among judges, including those who are not particularly conservative, regarding the increasing liberalism and intolerance law schools.

Just another vote that I have observed this as well (though I, like others, have a limited window as a clerk). Most judges are normies who hate this stuff and this is the hottest story in the elite legal world rn. This is the sort of thing they complain about to each other at lunch. See also John M. Walker, as traditional/not-online/normal of a judge as you’re going to find, sending out an outraged reply-all about the YLS debacle.

I wonder how much is generational? Walker is 82, and “kids these days”-ism just gets stronger as people get older. Not saying that it’s only generational, but I feel like that could be another kind of layer in addition to more ideological takes (and of course there are a lot of older federal judges).

(To be clear I don’t mean to dismiss judges’ concerns as having no rational basis when I say “ideological,” just that it does seem that the judges particularly worked up about this stuff fall on one end of the political spectrum. Again, acknowledging I can’t know what all judges who don’t publish on this issue are saying in chambers or to each other.)

[Anonymous User]

It's from Ed Whelan so take with as much salt as you think necessary, but reportedly

[tweet] NEWS: As a result of what one judge calls "Stanford law school clerk-bullying cretinism," in recent years several Stanford law students who had *accepted* clerkships with conservative judges withdrew their acceptances

https://twitter.com/EdWhelanEPPC/status ... 69988?s=20[/tweet]

Personally, I'm doubtful. Young lawyers will put up with awful things to have a clerkship on their resume (on both sides of the ideological spectrum as the Ninth Circuit has taught us). I'd be shocked if a little peer pressure would convince them to drop a clerkship. If they've accepted, they presumably told there firms. Are they going to tell the firms to expect them back a year early. Liberal judges follow the hiring plan too. So the students aren't likely to find a suitably ideologically pure replacement.

[Anonymous User]

It's from Ed Whelan so take with as much salt as you think necessary, but reportedly

[tweet] NEWS: As a result of what one judge calls "Stanford law school clerk-bullying cretinism," in recent years several Stanford law students who had *accepted* clerkships with conservative judges withdrew their acceptances

https://twitter.com/EdWhelanEPPC/status ... 69988?s=20[/tweet]

Personally, I'm doubtful. Young lawyers will put up with awful things to have a clerkship on their resume (on both sides of the ideological spectrum as the Ninth Circuit has taught us). I'd be shocked if a little peer pressure would convince them to drop a clerkship. If they've accepted, they presumably told there firms. Are they going to tell the firms to expect them back a year early. Liberal judges follow the hiring plan too. So the students aren't likely to find a suitably ideologically pure replacement.

This is so ridiculous and definitely did not happen. Maybe what happened is one Fed Soc judge offered a student a clerkship and they decided to go with another offer instead and that Fed Soc judge was simply unable to fathom why they would have picked that judge over them to the point they think the clerkship office bullied them into doing it.

[Anonymous User]

No one claimed that the clerkship office did anything. The claim is that the student body bullies anyone who has a clerkship with a conservative judge. Given the stuff we've heard so far, I believe it. If there's peer pressure to force all students in a section to wear black and protest a professor, there's probably a lot if "how dare you clerk with this evil person". A fedsoc kid will wear it like a badge of honor, but a regular center-to-center-left kid might decide it's not worth it to be publicly shamed by classmates, better just quietly go to biglaw and forego the clerkship.

[nixy]

No one claimed that the clerkship office did anything. The claim is that the student body bullies anyone who has a clerkship with a conservative judge. Given the stuff we've heard so far, I believe it. If there's peer pressure to force all students in a section to wear black and protest a professor, there's probably a lot if "how dare you clerk with this evil person". A fedsoc kid will wear it like a badge of honor, but a regular center-to-center-left kid might decide it's not worth it to be publicly shamed by classmates, better just quietly go to biglaw and forego the clerkship.

Lol no this is one of the most ridiculous things I’ve ever heard. No one is going to back out of a clerkship and *renege on a federal judge* because their classmates are salty (and I’m not conservative). They might continue applying and take another clerkship, but I still don’t think that they’d do that because of student bullying, just because it wasn’t their judge of choice to start with.