The Yale Law School Protest and Karl Popper's Paradox of Tolerance

      You may have heard of how student protesters tried to shut down the March 10 debate at Yale Law School between  Monica Miller of the American Humanist Association and Kristen Waggoner of the Alliance Defending Freedom hosted by the Yale Federalist Society. See Aaron Sibarium's Washington Free Beacon breaking story of March 16 and his follow-up March 18 story,  Mark Stern's Slate story sympathetic to the protesters, and David Lat's Substack story  and update with even more details.

      In brief, when Professor Kate Stith got up to introduce the panelist to the 40 or so people who wanted to listen to the debate, a group of perhaps 120 students interrupted her in protest. She read the students an official warning verbatim telling them to stop, and they quietly filed out of the room. Once in the hallway, they tried to shout the speakers down as best they could with a wall in between, and were loud enough to even disrupt classes on the second floor (and a job talk by international inequality scholar Claudia Flores, a talk attended by Dean Heather Gerken, had to stop and be resumed on Zoom).  Some days later, two things happened. First, more than 60% of the Yale Law student body signed an open letter supporting the protesters. Second, a prominent federal  judge Laurence Silberman sent an email to all federal judges saying they should ask about this the next time they think of hiring a Yale Law student as a clerk, a common and prestigious first job after law school.

     I would like to make five comments on the facts, and then get philosophical and talk about  the Paradox of Tolerance and whether Silberman was right to write.

 I. Fact

(1) Unless The Washington Free Beacon had published its story six days later, we would never have known of this outrage at one of the nation's top two law schools, an attempt to shut down free speech by our future rulers. (The Supreme Court currently has 4 Yale alums, 4 Harvard, and 1 Notre Dame.) We cannot rely on either Elite Media or Alternative Media to inform us of events that 50 years ago would have been national news– or, rather, we can only barely rely on them.

(2) The Slate article posts a selectively chosen 14 seconds of video to prove that the panelists weren't completely drowned out by the noise of the protesters shouting in the hallways outside the auditorium. Listen to it. Remember, this is the pro-protester article!  ("The Truth about the Yale Law Protest that Prompted a Federal Judge to Threaten a Clerkship Blacklist")  Then listen to the less-selective 18 minutes of video from the Washington Beacon article. Yes, the protesters did not *completely* drown out the speakers, but they did *half*-drown it out. Even more important, what you just heard when you clicked on the links is an angry mob outside in the hallway while three women are trying to speak. Wouldn't you feel nervous if you heard an angry mob of hostile, intolerant, guys who think you're equivalent to a Nazi war criminal shouting their hatred just outside the door of the room where you're speaking, a door you'll have to use to exit? 

(3) Slate tells us:

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.”

      Yale is proud of how their students stopped violating university rules every time after the first warning. What Yale doesn't notice is that they are letting students violate university rules. The rule is not "You may shout people down until the first warning," it is "You may not shout people down." At least I hope it is. Leniency is appropriate if the violator is somehow ignorant of the basic rules of civility— a freshman undergrad jock, for example— but leniency is highly inappropriate if the violator knows exactly what he is doing and is taking advantage of leniency. Yale should look at the photos and video, identify the offenders, and put it in their student records with a stiff reprimand (if they are actually Yale students).

(4) The students knew Yale policy was that they wouldn't be arrested unless they first had three warnings, Slate tells us. This makes me think of a marriage conference I attended with my wife where somebody told us that if you always give your child a warning before you punish him for doing X, you're teaching him he can do X. That is, you're teaching him he can do X as long as he likes until he gets the warning— indefinitely if you aren't there to give him the warning. These kids are being taught by Yale Law that they can disrupt speakers they don't like for as long as they like until they get their warning shot. Not good parenting, Dean Heather and Spokesperson Deborah.

    Especially not good for law students. We do not want to teach law students to advise their clients that it's okay to commit a certain crime because the cops alway go easy on first offenders (or the FBI, or EPA, or IRS, or SEC, or OSHA).

(5) A list of Yale law students and 3 faculty who signed an open letter in support of the protest  is available.

    Even with all of the privilege afforded to us at YLS, the decision to allow police officers in as a response to the protest put YLS’ queer student body at risk of harm. … The safety of a large contingent of YLS students—a group of largely LGBTQ and BIPOC students—was put at risk, possibly by our own administration. The risk was not just hypothetical: one of the officers called into SLB went as far as to try to move a trans student by physically pushing against them with his much larger body, despite the fact that the student was standing where OSA representatives had asked them to stand. Thankfully, an administrator asked the police officer to step away from the student, but this moment is one example of how inviting police onto campus could escalate beyond the administration’s control. We are saddened and appalled that a group of YLS’ most vulnerable students were put in danger.

     We urge YLS to change any policies or practices that invite police officers onto our campus in response to peaceful student protests. …This change would represent a shift towards a comprehensive understanding of safety for YLS students and a step in solidarity with people fighting for the rights and safety of LGBTQ people everywhere.

     The idea that having police on campus in New Haven reduces the safety of students is ludicrous. Indeed, this letter makes me think of the underused adjective, "fatuous". That's what it is to talk about campus police endangering students when a mob of 120 people has just been howling down three women in the room adjacent to them.  

II. Theory 

     Let us now think about two theoretical issues. Were the protesters wrong to try to suppress Kristen Waggoner? Was Judge Silberman wrong to suggest to other judges that they not hire the protesters as clerks?

     The two questions are related by Karl Popper's Paradox of Tolerance (which is one of several– see the Stanford Dictionary of Philosophy's article on Tolerance for more of them).  I'd like to introduce it with a very long quote from the comment thread of David Lat's Substack article. Bethany Scott lays out the case for the protesters in what I think is a better-than-average presentation of the woke view  (greatly to her credit, she engages with the anti-woke rather than merely hurling insults). I think it defames the ADF, but I have not omitted the defamatory parts. She writes the following (boldface and links are added by me):

      I am sure you are well versed in  Popper's paradox of tolerance. In general it states that a society should be tolerant of everything except intolerance.

     Popper gives parameters of how much intolerance a society should allow:

       “I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would certainly be most unwise.”

      I believe your argument is that the people being shouted down at the various Universities fall into the category stated above- that the conservative philosophy is an intellectual one by a side that simply has differing but valid reason for why they believe what they believe and those differing but valid reasons should be respectfully listened to and then debated.

      However Popper goes on to define the ideas that should *not* be tolerated:

     “But we should claim the right to suppress them if necessary even by force; for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive, and teach them to answer arguments by the use of their fists or pistols. We should therefore claim, in the name of tolerance, the right not to tolerate the intolerant. We should claim that any movement preaching intolerance places itself outside the law and we should consider incitement to intolerance and persecution as criminal, in the same way as we should consider incitement to murder, or to kidnapping, or to the revival of the slave trade, as criminal.”

      I would argue that conservative ideology falls squarely into this category- the one where intolerance is not to be tolerated. Here are just a few reasons why:

1. The ADF is considered to be a hate group by the Southern Poverty Law Center. Their goal is to remove the equal Constitutional protections afforded LGBTQ peoples and render LGBTQ people second class citizens. There is *no rational argument* to support this belief. None. It is as if the KKK was able to come to Yale Law School and discuss why Black people aren’t equal to White people. It is as if their hate is equal to the argument that LGBTQ people are actually people with full Constitutional rights to have sex and get married without being persecuted by the government. Sometimes an argument has been so thoroughly debunked it no longer needs to be discussed, especially when the argument is promoting legal intolerance.

2. The views expressed by the ADF are being used to hurt LGBTQ people right now. Today. Where do you think the abhorrent attack on the parents of trans children in Texas came from? These ideas are no longer just intellectual discussions, they are the foundation of real political policy that is attacking parents and children. When intolerance is so powerful as to do real harm to people, it is no longer equal in regards to what should be politely discussed.

     Ergo the intolerance supported by the ADF was rightly not tolerated by the students at Yale. …

     You state in the article, “Would they want an environment where a majority can ban the teaching of critical race theory, the reading of Toni Morrison novels, or a particular approach to sex education? My guess is no.” I dont understand why you are referring to such things as if they might possibly happen sometime in the far off future. This things are happening right now! And part of the reason is because the only people who actually listen to and know “both sides” *are people on the left”! People on the right aren’t politely listening to liberal arguments as to why LGBTQ people should have equal rights, they are listening to people like Shapiro who strawman liberal arguments and then argue against them in bad faith. THAT is what the students were protesting! And yet somehow you think that it is ok for the right to behave in such an egregious manner, but when college students are fed up with the gaslighting and loudly protest against it, it is somehow worse? In the words of President Obama, “c’mon man”. It is *exactly* what Popper is referring to when he describes the category of intolerance that should never be tolerated, “for it may easily turn out that they are not prepared to meet us on the level of rational argument, but begin by denouncing all argument; they may forbid their followers to listen to rational argument, because it is deceptive..”

    Bethany Scott has got Popper exactly backwards. She has zoomed in on the word "intolerance" and ignored what he means by it.   What Popper means by intolerance is closing your ears to opposing arguments and shutting down argument by force. What she means by intolerance is someone criticizing someone else's behavior or identity group.  That, of course, is "argument". What the wokefolk want to do is close their ears to opposing arguments and shut them down by force.  Thus, by Popper's Paradox of Tolerance, it is Bethany Scott and the Wokefolk who should be shut down. Applied to the Yale Law School situation, Popper is suggesting that it might be acceptable to expel the entire group of protesters and and ban the student groups who organized the protest.  Bad news for the 20 student groups and 390 students who signed the letter of support for the protesters— The Trans@YLS Board, ACS Board, APALSA Board, BLSA Board, DLSA Board, Al Brady, Diego Fernández-Pagés, Deborah Naomi Rabinovich, Rachel Perler, and the rest.

     Let's develop this argument a little. First, consider the Alliance Defending Freedom.  The ADF is a legal assistance organization, and in this case it was precisely there to make rational arguments, in a debate with an opposing side.  It recently argued and won an important civil liberties case before the Supreme Court.  It is just plain crazy to say that it "denounced all argument" or "forbids their followers to listen to rational argument' or advocates "answering arguments by the use of fists and pistols". No— what it does is disagree with Bethany Scott.

     Now consider the protesters. The 120 of them stood up menacingly,  interrupted the debate, and called for it to stop because nobody should be allowed to listen to somebody from the ADF. They then went outside and continued to make a deafening uproar, disrupting people trying to converse with each other all over the building. They did not use "fists and pistols", but isn't it clear that that's just because police were present? The Nazis did not use fists and pistols either on occasions when the German police were present and prepared to stop them (which they were until 1932).  I doubt the Yale protesters had pistols, but they certainly had fists, which they used to pound on doors, giving any person who listens some unease that the protesters might prefer to be pounding faces.

      Popper was a Jewish Lutheran from Vienna who wrote about tolerance in 1945 while teaching in New Zealand who later moved to the London School of Economics.  A Marxist in his youth, he is thinking of the tactics of the Nazi and Communist Parties in the 1930's, when their rival gangs clashed in the streets of Germany and tried to disrupt each other's rallies. It is Popper's reasoning that led the U.S. to pass the Communist Control Act of 1954 outlawing the Communist Party. Membership in the Party was made a criminal act, penalized by  up to a $10,000 fine and 5 years in prison if members failed to register with the U.S. Attorney General.  The act was passed with overwhelming liberal support, as well as conservative, though J. Edgar Hoover, the conservative Director of the FBI, actually opposed it because he thought it would just drive the Party underground.  Perhaps Yale students have not changed; a  1955 student article in the Yale Law Journal argued that the bill was in essence constitutional, just poorly drafted.  The act was not enforced,  and a court finally declared it unconstitutional in 1973.     

     The Paradox of Tolerance can be also applied to academia. I'm just reading C. P. Snow's novel, The Affair, set in 1953 Cambridge. It’s about a quasi-Stalinist college fellow, Dr. Howard,  who is expelled for scientific fraud but later turns out to be innocent. Before his innocence is shown, another fellow says, "I always thought it was a mistake to elect him,  and I was sorry that our scientific friends got their way . . . I should have to be convinced that, in present conditions, a man of Howard's politics can be a man of good character, as I understand the term. And I am not prepared to welcome such men in the name of tolerance, the tolerance that they themselves despise." Indeed we now can see that allowing intolerant  professors into a department is a one-way street. Once they're the majority, they close the doors to anyone else.

     Thus, the Paradox of Tolerance actually is an argument for banning Bethany Scott, not Kirsten Waggoner.

     How about our second question? Was Silberman right to email his fellow judges to suggest that they consider in their clerk choices whether the clerk has protested against free speech?

     I do think Silberman's letter was appropriate, but not as punishment for protesting, even for violently protesting. That's what criminal penalties are for. What Silberman's letter was appropriate for was to remind judges that a judicial temperament is important not just for judges but for their clerks. Someone who thinks it proper to shout down Kristen Waggoner should not be a judge. Nor should he be clerk to a judge. What will he do if she comes to court representing an ADF client? Will he shout her down from the bench? Will he purposely lose her filings?  How carefully will he read the briefs when his pre-judgement, his pre-judice, is that "there is *no rational argument* to support this belief. None," and "the argument has been so thoroughly debunked it no longer needs to be discussed"?

   Ought the students who supported the protest to become lawyers at all? To win, a litigator must understand the other side's arguments. If you find it excruciating to listen to argumentsfrom the other side, you won’t be able even to refute them. These students would be well-advised to rethink their career path. Indeed, they may have to. One of the requirements for taking the bar exam is "moral fitness". A friend of mine feared he would not be allowed to pass the bar because he neglected to mention a drug arrest in a background check. The bar held a special hearing on his case (they did let him through). What of a candidate for the bar who has advocated shutting down a debate and shouting down people he disagrees with? Is he going to make a good-faith effort to comply with discovery requests or with a judge’s Brady Order and show exculpatory evidence to the criminal defendant?

     I'll end with some advice for the students who signed the letter. Tip: if you have an obvious flaw, address it in your job application. If you ignore it, the employer will think the worst. You need to act to minimize the damage, in a fair and honest way. As David Lat says, with wisdom beyond his years, Judge Silberman's letter is not as important as people think— judges are going to google potential clerks' names anyway and all will be known. I suspect the least-damaging reason to have signed the letter is cowardice, and the next best reason is conformism. When you apply for a job, whether a clerkship or with Skadden Arps, add this to your job packet and explain that you were afraid of reprisal, since Yale Law School has so many intolerant students, staff, and faculty, or say that you just wanted to fit in. Both answers are humiliating, but at least  they’re not incriminating.