This Blog Post Is Cancelled
Judge James C. Ho of the Fifth Circuit Court of Appeals will no longer be considering Yale Law students for clerkships in his chambers, according to an address at a September Federalist Society event.[1] For anyone not up to date on the current grievances of the legal scholars and judges who frequent the Federalist Society speaking circuit, Judge Ho’s announcement might come as a surprise. A blanket rejection of all candidates from a school consistently ranked at number one—and the alma mater of four of nine current Supreme Court Justices—is an atypical hiring policy for a federal judge.[2] But Yale, it turns out, has a darker side, and Judge Ho has a warning to issue. Instead of filling young minds with the basics of personal jurisdiction and accomplice liability, Yale Law School is busily fermenting a cohort of young censors, filled with “intolerance and illiberalism.”[3] According to Judge Ho, “Yale not only tolerates the cancellation of views—it actively practices it.”[4]
The problem has a name: cancel culture.[5] In his address, Judge Ho emphasized the “dramatic[]” change in campus attitudes toward speech he’s personally observed since his graduation from law school in 1999.[6] He believes the phenomenon is a different beast entirely from the long tradition of student protests in this country: “I use the term disruption, not protest on purpose. Protest is an exercise of your freedom of speech. Disruption is a violation of another person’s freedom of speech.”[7] A neat way of putting it, but is the line that easy to make out in practice?
To illustrate his point, Judge Ho provides a rogues’ gallery of student “disruptions.” First, there’s the 2018 incident at CUNY School of Law, when dozens of students with signs delivered a stern scolding to guest speaker Josh Blackman regarding comments he’d made praising the recission of DACA; once the shouting subsided, a tense, but polite, dialogue ensued before the protesting students quietly filtered out.[8] In 2021, Judge Patrick Bumatay of the Ninth Circuit was apparently censored by a silent protest when a group of students expressed their disapproval by walking out of his address.[9] Judge David Stras of the Eighth Circuit faced a similarly alarming disruption during a Federalist Society lecture at Duke Law School: a group of students stood up and requested permission to read a statement on behalf of themselves and other LGBT students, sharing their disagreement with his characterization of anti-discrimination laws.[10]
Of course, then there’s Yale, where, Judge Ho says, “cancellations and disruptions seem to occur with special frequency.”[11] In the fall of 2021, a minor ruckus arose over the email invitation a student sent out to a party at his “Trap House.”[12] The racially charged language didn’t sit well with all students.[13] It was, according to one woman of color at Yale, “kinda dumb.”[14] But commentators on both sides of the campus speech debate agreed that the administration’s response—calling the student in for an aggressive admonishment, implicitly threatening his career, and pressuring him to apologize—was wrong.[15] More recently, in March 2022, over 100 students held a noisy protest over a Federalist Society panel on civil liberties.[16] The event featured a speaker from the progressive American Humanist Association alongside a speaker from the Alliance Defending Freedom—a group known for its hardline conservative views on LGBT issues and abortion.[17] The initial protest was indisputably disruptive, threatening to shut down the event entirely. Moderator Professor Kate Sith enforced Yale’s policies on protests, offering students the choice to either stay and keep quiet or take their protest outside, and most chose to leave.[18] But they didn’t go far. Naturally, disagreement persists over how disruptive the protest was once it moved outside the event room, but 100-odd students chanting right outside the door is hard to ignore.[19]
All this, to Judge Ho, is a clear sign that the kids are not alright, and his diagnosis of the problem is that “[w]e’ve stopped teaching the next generation how to agree to disagree.”[20] And if the problem is with what we’re teaching our children, then the solution needs to start there, too. So, Judge Ho is taking a stand, and cancelling the cancellers. Wait, sorry, he’s not cancelling Yale: “Cancel culture is about excluding people,” he says, “I want institutions of higher learning to include people . . . I don’t want to cancel Yale. I want Yale to stop cancelling people like me.”[21] Yale students may be excluded from his chambers, but they haven’t been cancelled—after all, this is about including people. Judge Ho invites his colleagues on the federal bench to join him, but so far only one—Judge Elizabeth Branch of the Eleventh Circuit—has publicly taken him up on the offer.[22] The Washington Free Beacon reports that twelve other federal judges have joined in, but all requested anonymity, “in order to speak”—and boycott— “freely.”[23]
But the public response is decidedly mixed, even among those who share Judge Ho’s concerns about free speech on campus. The same day National Review broke the story, the outlet also published a critical response by Isaac Schorr, questioning the fit between the tactics and the principles: “[I]t’s worth considering in the abstract whether a federal judge using the blameless as pawns in an effort to change the behavior of an institution to which they are connected—but whose malfeasance they are not responsible for—is a practice that conservatives should endorse.”[24] At Original Jurisdiction, David Lat, founder of Above the Law and Yale alum, wrote, “I understand and share Judge Ho’s cancel-culture concerns, but worry that ‘fighting cancellation with cancellation’ just pours gasoline on the proverbial fire.”[25] Further, some Yale conservatives wrote in to share their concerns regarding who exactly the lesson is directed at. Lat reports that “[these alums] argue it will only hurt conservatives at YLS . . . and it won’t affect the conduct of intolerant progressives at Yale Law, who would be fine with fewer Yalies clerking for conservative judges and justices.”[26] Professor Orin Kerr of Berkeley Law was less circumspect: “This is a bad idea, and I hope other judges do not adopt it.”[27]
One of the most thoughtful and comprehensive responses to the situation comes from Professor Eugene Volokh of UCLA Law, one of the foremost First Amendment scholars in the nation.[28] As Professor Volokh points out, although Judge Ho is chiefly focused on the free speech rights of conservatives, as a jurist he’s worth taking seriously when it comes to the First Amendment.[29] Judge Ho’s opinions in Oliver v. Arnold,[30] supporting a high school student’s right to criticize America, and Villareal v. Laredo,[31] affirming a journalist’s right to document police failures, demonstrate a sincere commitment to the First Amendment rights of speakers on both the left and the right.[32] If Judge Ho says he’s concerned that viewpoint suppression on law school campuses is producing worse lawyers, we should take him at his word. But if the end goal is more lawyers who can “agree to disagree,” who are ideologically flexible enough to question without attacking, Professor Volokh thinks the Yale boycott is the wrong approach.[33]
To Professor Volokh, Judge Ho’s announcement misses the mark as a form of direct action. He suggests the move is more akin to a “secondary boycott”—or, in labor disputes, a retaliation against neutrals as a means of influencing the real target.[34] The problem is such tactics are not only an unfair imposition of “guilt by association,” they’re more likely to escalate the situation than to drive change.[35] Professor Volokh predicts that when secondary boycotts “are publicly urged by people who are seen as one place on the ideological spectrum . . . lots of others will arise from the opposite place, and will become much harder to fight once the precedent has been set.”[36] When each side feels targeted, returning fire seems only just. One possible escalation he suggests is easy to imagine: “[S]ay that some judges or law firms try to influence states' policies on abortion by boycotting all graduates of universities in states that ban or sharply restrict abortion.”[37] Imagine how well that would go over with certain state legislatures. Mutual disarmament is unlikely to be the result.
There are real conversations to have here, but any such opportunity is squashed by flattening the issue into a liberal censorship vs. conservative speech framework. On the bench, Judge Ho has defended speech against governmental overreach both left and right—but from his latest accounting, all of cancel culture’s victims are conservatives and all of its perpetrators are liberals. Unmentioned is the Stanford Law 3L who faced a misconduct investigation over a satirical flier that nearly prevented him from sitting for the June bar exam.[38] Why isn’t it cancel culture when Federalist Society members threaten a student’s career because they can’t take a joke? No word, either, about the nationwide efforts by conservative activists to get libraries to pull books that offend conservative sensibilities.[39] Are student disruptions that much more dangerous than outright book banning?
Judge Ho says all he’s looking for is to be included. But when he leaves out half the story, it looks less like he’s asking to be brought into a conversation and more like he’s demanding a megaphone. It starts to look like his real concern is about conservative access to a forum that’s graced with the prestige of the name “Yale Law School.” To illustrate, one incident that’s left out of Judge Ho’s list of cancellations occurred in a forum with considerably less prestige than Yale. Just a few weeks before the protest at Yale, something strikingly similar happened at UC Hastings College of the Law,[40] when the Federalist Society invited Ilya Shapiro to deliver remarks about the nomination of now-Justice Ketanji Brown Jackson to the Supreme Court.[41] At Hastings, there’s no dispute over whether the protestors really did disrupt the event: Shapiro never got more than a few words out before he was drowned out again by student protestors.[42]
Shapiro’s comment that President Biden’s nominee would be a “lesser black woman” was reprehensible.[43] It’s hard to countenance the suggestion that the protestors, led by Hastings’ Black Law Students Association, should have had a polite response to such a statement. And civil disobedience is, well, disobedient. Yet if the result was a victory for the protestors, it must be considered a symbolic one, unlikely to reach anyone not already in agreement. Shapiro’s voice was drowned out, but his message wasn’t stopped. No one walked away from that day a winner.
When someone like Ilya Shapiro is prevented from speaking at a law school event, he isn’t dragged away to have his tongue cut out. The speakers Judge Ho names among the ranks of the cancelled have no shortage of other venues for their speech, from the op-ed pages of the Wall Street Journal to Federalist Society lectures. Their ideas are not at risk of suppression from the broader discourse. That may not be constitutionally sufficient, but cancel culture is about norms, not legal rules. The greater harm (as Judge Ho seems to acknowledge) is in the second-order effects. The students who do want to hear the speaker are deprived of that opportunity. Students who find the speaker’s ideas repugnant lose the opportunity to hear a well-articulated defense of them and are less well-equipped to dismantle those defenses in a situation with higher stakes than law school. Those who agree with the speaker but lack the protections power affords to an Ilya Shapiro may censor themselves out of fear for their future legal career. Liberal and conservative students alike are vulnerable to these harms.
Somewhere in all this, there’s a conversation worth having about how to effectively combat speech we oppose. But Judge Ho doesn’t seem interested in having that conversation with Hastings students of any ideological stripes. By his standards, UC Hastings ought to be top of the class. Even Yale students, censorious as they may be, didn’t manage to actually shut down an event. Yet Hastings doesn’t even merit a brief mention.
When conservatives talk about cancel culture in the terms Judge Ho uses—emphasizing access to high-status platforms, laying the blame at the feet of overly-sensitive progressives, overlooking the bad actors on their own side—it’s easy for liberal students to hear nothing more than fragile egos demanding special treatment. From there, all invocations of “cancel culture” can be dismissed as overreactions to legitimate criticism, with any meritorious concerns swept away in the same heap. If a cancellation at Yale must be answered with a boycott, but a cancellation at Hastings is hardly worth mentioning, it’s hard to see why these students should be expected to view this as an issue of principles rather than a fight for power. And if all this is really just a fight for the megaphone, why not make your voice loud enough to drown out your opponent’s?
Judge Ho is right that the culture around campus speech needs some rethinking, and the issues he highlights deserve to be engaged with in good faith. School administrators are too eager to launch investigations to appease critics both liberal and conservative, and education suffers when optics take priority over learning. Speech that offends receives massively disproportionate responses. We treat an idea as either good, and therefore worthy of discussion, or bad, in which case it must be starved of oxygen to keep it from spreading. Those problems appear regardless of the political leanings of the host forum. Whether either side is more censor-happy is beside the point when the issue is whether the problem is real—and it is real. But a response like Judge Ho’s doesn’t offer solutions, only admonishments. If he wants to change minds by persuasion, in the best traditions of free speech, rather than by force, he needs to give students a reason to want to hear him. This boycott won’t do that.
[1] Nate Hochman, Exclusive: Federal Judge Vows to Stop Hiring Law Clerks from Yale Law School, Nat’l Rev. (Sept. 29, 2022, 1:00 PM), https://www.nationalreview.com/2022/09/exclusive-federal-judge-vows-to-stop-hiring-law-clerks-from-yale-law-school/.
[2] Biographies of the Justices, SCOTUSblog, https://www.scotusblog.com/biographies-of-the-justices/ (last visited Dec. 14, 2022).
[3] Hochman, supra note 1.
[4] Id.
[5] Id.
[6] James C. Ho, Agreeing to Disagree: Restoring America by Resisting Cancel Culture, 27 Tex. Rev. L. & Pol. 1, 2 (2022).
[7] Ho, supra note 6, at 3 (emphasis in original).
[8] Id.; Josh Blackman, Students at CUNY Law Protested and Heckled My Lecture About Free Speech on Campus, Nat’l. Rev. (Apr. 12, 2018, 12:27 PM), https://www.nationalreview.com/2018/04/students-at-cuny-law-protested-and-heckled-my-lecture-about-free-speech-on-campus/.
[9] Ho, supra note 6, at 3; Stephanie Ashe & Stephanie Unur, Constitution Day 2021: The Value of Dissent, Stan. L. School: News & Media (Sept. 23, 2021), https://law.stanford.edu/press/constitution-day-2021-the-value-of-dissent/.
[10] Ho, supra note 6, at 3; Josh Blackman, Judge David Stras Was Protested at Duke Law School, Reason: Volokh Conspiracy (Sept. 30, 2021, 5:06 PM), https://reason.com/volokh/2021/09/30/judge-david-stras-was-protested-at-duke-law-school/.
[11] Ho, supra note 6, at 5.
[12] David Lat, The Latest (Ridiculous) Controversy at Yale Law School, Original Jurisdiction (Oct. 14, 2021), https://davidlat.substack.com/p/the-latest-ridiculous-controversy.
[13] Id.
[14] Id.
[15] Mark Joseph Stern, Yale Law School’s Free Speech Blunder Bolsters the Federalist Society’s Victim Mentality, Slate (Oct. 13, 2021, 6:40 PM), https://slate.com/news-and-politics/2021/10/yale-law-school-federalist-society-trap-house.html.
[16] Robby Soave, “Grow Up”: Yale Law School Students Interrupt Event, Demand Right to Talk Over Speakers, Reason (Mar. 16, 2022, 5:30 PM), https://reason.com/2022/03/16/yale-law-school-students-disrupt-event-adf-aha/.
[17] Id.
[18] Id.
[19] Id.
[20] Ho, supra note 6, at 2.
[21] Id. at 18 (emphasis in original).
[22] Nate Hochman, Exclusive: Another Federal Judge Joins Boycott of Yale Law, Nat’l. Rev. (Oct. 7, 2022, 2:34 PM), https://www.nationalreview.com/2022/10/exclusive-another-federal-judge-joins-boycott-of-yale-law/5.
[23] Aaron Sibarium, Citing Concern for Free Speech, 12 Federal Judges Say They Won’t Take Clerks from Yale Law School, Wash. Free Beacon(Oct. 4, 2022, 3:00 PM), https://freebeacon.com/campus/citing-concern-for-free-speech-12-federal-judges-say-they-wont-take-clerks-from-yale-law-school/. Fellow victims of cancel culture Josh Blackman and Ilya Shapiro also wrote pieces to express their support. See David Lat, Judicial Notice (10.01.22): Ho No He Didn’t!, Original Jurisdiction (Oct. 2, 2022), https://davidlat.substack.com/p/judicial-notice-100122-ho-no-he-didnt [hereinafter Judicial Notice].
[24] Isaac Schorr, Judge Ho’s Misguided Answer to Illiberalism at Yale, Nat’l. Rev. (Sept. 29, 2022, 6:04 PM), https://www.nationalreview.com/corner/judge-hos-misguided-answer-to-illiberalism-at-yale/.
[25] Judicial Notice, supra note 23.
[26] Id.
[27] Orin S. Kerr, Boycotting Law Schools in Clerk Hiring as a Way to Influence Law School Culture, Reason: Volokh Conspiracy (Sept. 29, 2022, 10:53 PM), https://reason.com/volokh/2022/09/29/boycotting-law-schools-in-clerk-hiring-as-a-way-to-influence-law-school-culture/.
[28] Eugene Volokh, Media Guide to UCLA Experts, https://newsroom.ucla.edu/experts/preview/531c580e299b505aa300145d/ (last visited Dec. 15, 2022).
[29] Eugene Volokh, Yale Law School, Judge Ho, Neutrals, and Secondary Boycotts, Reason: Volokh Conspiracy (Oct. 12, 2022), https://reason.com/volokh/2022/10/12/yale-law-school-judge-ho-neutrals-and-secondary-boycotts/.
[30] 19 F.4th 843 (5th Cir. 2021).
[31] 44 F.4th 363 (5th Cir. 2022), reh’g en banc granted, opinion vacated, 52 F.4th 265 (5th Cir. 2022).
[32] Volokh, supra note 29.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Jenna Greene, Just Kidding! How a Stanford 3L Got the Last Laugh Against the Federalist Society, Reuters (June 8, 2021, 2:53 PM), https://www.reuters.com/legal/government/just-kidding-how-stanford-3l-got-last-laugh-against-federalist-society-2021-06-08/.
[39] Annie Gowen, Censorship Battles’ New Frontier: Your Public Library, Wash. Post (Apr. 17, 2022, 7:00 AM), https://www.washingtonpost.com/nation/2022/04/17/public-libraries-books-censorship/.
[40] Now known as the University of California, College of the Law San Francisco.
[41] Robby Soave, UC Hastings Law Students Silence Conservative Speaker, Demand Anti-Racism Training, Reason (Mar. 2, 2022, 6:02 PM), https://reason.com/2022/03/02/ilya-shapiro-uc-hastings-law-school-students-protest-racism-supreme-court/.
[42] Id.
[43] Id.