Judge Kyle Duncan of the United States Court of Appeals for the Fifth Circuit visited Notre Dame on Friday, March 24 to deliver a lecture titled “Free Speech and Legal Education in Our Liberal Democracy.” The event was sponsored by the Center for Citizenship & Constitutional Government, the Notre Dame Federalist Society, and the Federalist Society’s Freedom of Thought Project.
Duncan’s talk at Notre Dame was focused on the American free speech tradition and the current state of legal education. Addressing the elephant in the room, Duncan spoke to his recent experience at Stanford Law School.
“It's a great country where you can harshly criticize federal judges and nothing bad will happen to you,” remarked Duncan. He continued: “But make no mistake — what went on in that classroom on March 9 had nothing to do with our proud American tradition of free speech … It was rather a parody of it.”
Duncan was appointed to the United States Court of Appeals for the Fifth Circuit by President Donald Trump in May 2018. Recently, he has become the center of considerable national attention after being heckled out of Stanford Law School by what can only be described as a “guerrilla” audience. This audience was inflamed by Duncan’s opinion in the case United States v. Varner, which they claimed had “denied a transwoman’s existence.” The protest escalated to the point that Duncan had to be escorted out by two U.S. Marshals.
“That a federal judge was not able to deliver prepared remarks at one of our nation’s highest-ranked law schools is troubling, ” said Vincent Phillip Muñoz, Director of the Center for Citizenship and Constitutional Government. “There may be reasons to disagree with the judge on both legal and policy grounds,” Muñoz continued, “but one cannot receive a sound legal education – indeed, our legal system cannot function – without the freedom for individuals to advocate for their side.”
In his lecture at Notre Dame, Duncan explained the difference between free speech, which can be exercised through principled protests, and mob-like attempts at intimidation. The latter is especially concerning to see at legal institutions, such as Stanford Law School, he said. According to Duncan, the point of a legal education is to train students to think logically, to argue respectfully, and to advocate effectively on behalf of themselves and their clients. Screaming insults and silencing the person you are claiming to debate does not utilize any of those skills.
After the debate, Duncan expounded on the state of legal education in America, commenting on the dangers of cancel culture.
“My advice to students facing such a poisonous culture, especially in a law school, is to push back at it, relentlessly but respectfully — otherwise the bullies will win,” he said. Duncan advocates for meeting irrationality and hatred with respectful and well-reasoned arguments.
Duncan remarked that for him, the secret to dealing with judicial disagreement is to have a detachment from the job or case at hand. By separating one's feelings and opinion from the law, a judge can decide a case both impartially and with civility, he said.
Duncan's full lecture is available at this link.
Article contributed by CCCG Writing Fellow Luca Fanucchi.