NYT: David French on disrupting speech and “the law of polarization”

March 26, 2023 • 9:30 am

This piece by David French, published in the New York Times on March 23, is another hopeful indication that the paper is becoming a little less woke. They’ve defended their publication of an objective article on gender transition and chastised their staffers who criticized the author, they’ve added John McWhorter to their list of regular columnists, and they’re starting to publish more articles like this, defending not only free speech but criticizing those who shout down speakers.

French is identified this way by Wikipedia:

David Austin French (born January 24, 1969) is an American political commentator and former attorney who has argued high-profile religious liberty cases. He is a columnist for The New York Times. Formerly a fellow at the National Review Institute and a staff writer for National Review from 2015 to 2019, French currently serves as senior editor of The Dispatch and a contributing writer for The Atlantic.

Click below to read:


This is one of many articles that appeared after students at Stanford Law School (SLS) shut down a talk by conservative Appellate Court Judge Kyle Duncan—not because they didn’t like his talk (which was to be about the relationship between his court and the Supreme Court on issues like covid and guns), but because they didn’t like his conservative decision and judicial philosophy. I don’t like them, either, but neither would I try to prevent him from speaking. Indeed, I’d probably go to hear him, mainly because his topic is of interest—and should have been of greater interest to law students.

French first goes after the students for disrupting a talk that should have been important to them:

. . . How do lower courts decide cases on legal issues in which Supreme Court case law is unsettled or changing?

It’s a particularly important topic for aspiring litigators, many of whom will argue cases in front of judges like Duncan, one of the hundreds of Republican-appointed originalists who account for a high percentage of the federal judiciary. After all, a lawyer’s job is to try to win over judges, no matter who appointed them and no matter their ideology.

Insights into a judge’s thinking are especially valuable if the judge is coming from a different ideological perspective. We often instinctively know how to reach people who share our views. It can be a struggle to understand our philosophical opposites.

Indeed, to the extent that the SLS students are going to litigate cases, they have to be able to listen to the other side, think about the other side’s best arguments, and then counter them. They cannot be rude nor interrupt, and above all they cannot go after the judge! SLS has to teach its students to respect free speech and, at least in court, give their opponents a hearing. The school is indeed creating a unit to teach the law students what free speech really means, though I’m not sure it will temper their juvenile tendency to censor opponents. French throws in a good quote by Frederick Douglass

Robust protest should be welcome in the academy, and it is entirely appropriate to ask any judge difficult questions during the question and answer session after a speech. But protests that go so far as to shout down or disrupt speeches or events aren’t free speech but rather mob censorship.

This is an ancient principle of American liberty. My right to protest does not encompass a right to silence or drown out another person. As the abolitionist Frederick Douglass wrote in 1860 after an antislavery event was disrupted in Boston by a violent mob, “There can be no right of speech where any man, however lifted up, or however humble, however young, or however old, is overawed by force, and compelled to suppress his honest sentiments.”

Douglass of course was black, and I’d be curious to see how the SLS students counter his arguments. In fact, perhaps SLS should, as part of its new program, hold a debate between those students who think it was right to shut down speakers like Duncan, and those who don’t.

At any rate, the chastising of law students is widespread now (I haven’t seen any articles approving of what they did), but French adds something more: a theory (which is not his) about why the SLS fracas occurred. He first establishes that “America’s elite law schools are overwhelmingly progressive”, citing a study showing how lawyer’s political affiliation is skewed to the left compared to the general population.

Below a diagram from Sunstein’s paper; on the X axis is the “conservatism score” of lawyers, based largely on their campaign contributions. They linked the public record of contributions with the national directory of attorneys, producing this histogram. The X-axis scale going from liberal (left) to conservative (right), and the height of the bars representing the number of lawyers in each class. You can see that this histogram is based on hundreds of thousands of lawyers. And you can also see that it’s skewed to the left. If you looked at professors in general, I’m betting it would be far more skewed to the left.

(from paper): Figure 1 displays the ideological distribution of all American lawyers, oriented from most liberal (negative on the CFscore scale) to most conservative (positive on the CFscore scale).9 The histogram bars here—and in subsequent figures presented in the article—represent frequencies. Taller bars mean that more lawyers fall within a given ideology, and shorter bars mean that fewer lawyers fall within a given ideology.

Given this, French then presents an idea floated by Harvard professor Cass Sunstein that, says French, explains why when you have groups or “tribes,” their association tends to make them more extreme. (I haven’t read all of Sunstein’s paper, but you can see it at the link below (download pdf here).


One of the most helpful frameworks for understanding American division and polarization comes from Cass Sunstein at Harvard Law School. In a 1999 paper he identified and described a phenomenon he called the “law of group polarization.” The law is well stated by the first sentence of the abstract: “In a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments.”

In other words, when like-minded people gather, they tend to become more extreme. If you’re opposed to gun control and gather with other gun-rights advocates, you’re likely to become more committed to gun rights. If you’re attempting to raise awareness of climate change and gather with other climate activists, you’re likely to become more committed to your cause.

This law of group polarization helps, as Sunstein writes, “to explain extremism, ‘radicalization,’ cultural shifts and the behavior of political parties and religious organizations; it is closely connected to current concerns about the consequences of the internet; it also helps account for feuds, ethnic antagonism and tribalism.”

The tie to the academy is obvious. A coalition of like-minded people who study together, often live together and learn from other like-minded people can often radicalize. And when they radicalize, they have trouble not just understanding opposing points of view but also seeing their opponents as decent human beings.

In a strange way, the culture of the legal academy is at war with the culture of the legal profession. While the profession is left leaning, it channels conflict into rules-based legal arguments that feature forced civility and grant each side the full opportunity to make its case. There is no such thing as shouting down opposing counsel in court. You certainly cannot heckle a federal judge into silence. There is no option but to fully understand your opponents’ legal arguments and grapple with them on their merits.’

Here’s how Sunstein explains it in his paper, and goes on to document this explanation and cite psychology experiments that support it:

Two principal mechanisms underlie group polarization. The first points to social influences on behavior; the second emphasizes limited “argument pools,” and the directions in which those limited pools lead group members. An understanding of these mechanisms provides many insights into legal and political issues; it illuminates a great deal, for example, about likely processes within multimember courts, juries, political parties, and legislatures – not to mention insulated ethnic groups, extremist organizations, student associations, faculties, workplaces, and families. At the same time, these mechanisms give little reason for confidence that deliberation is making things better than worse; in fact they raise some serious questions about deliberation from the normative point of view. If deliberation simply pushes a group toward a more extreme point in the direction of its original tendency, do we have any systematic reason to think that discussion is producing improvements?

Of course that argument militates against jury deliberation, as well as other things we take for granted.

What is French’s solution? How can we prevent debacles like the one at Stanford? He suggests a greater diversity of opinion in schools, and the teaching of a more “rational conservatism”:

There is no quick or easy fix for the problem of group polarization — in the academy or elsewhere. Law schools should make sure that they’re not discriminating against conservative applicants, either in admissions or in hiring, and as the Claremont McKenna College professor Jon A. Shields wrote eloquently today in The Times, progressive professors should intentionally start teaching the best of the conservative intellectual tradition.

Given the left lean of the entire legal profession, however, conservative students and scholars should expect to be in the minority. Yet no matter the ideological composition of the faculty or student body, students can still take the initiative to seek out the best expression of opposing points of view and listen respectfully even if they intend to challenge their opponents firmly.

It’s true that schools should strive for diversity of philosophy and thought, for, as Mill argued, you can’t really have faith in your own beliefs until they’re tested on the whetstone of opposing beliefs—and against the best arguments of your opponents. Debaters always prepare for debates by imagining what the other side is going to say.

There is a solid educational rationale for this kind of diversity, though ideological diversity isn’t the kind of “diversity” for which schools are striving. When a university says it’s “diverse” or “striving for greater diversity,” it  really mean either sex diversity (though now women predominate as students in higher education), and, importantly, ethnic diversity. But given the lack of evidence that different ethnic groups tend to have different (and within-group homogeneous) ways of looking at the world, the educational importance of ideological diversity would seem to be greater than that of ethnic diversity. (The latter, however, is important if you conceive as the mission of higher education to effect political and societal change.)

But what French’s solution doesn’t explaion—at least to me—is why things have become more polarized in recent years. After all, the titer of Republicans and Democrats in Congress (and voters on both sides), hasn’t changed much recently, so the tribes have pretty much existed in their present proportions. So why has everything become more polarized lately? (And surely it has!). And why would striking a greater ideological balance in colleges help alleviate the polarization? To me it would seem to increase it by creating larger tribes on the conservative side.

No, what French seems to be calling for is a more anodyne solution: students inculcated with the desire to hear their opponents—and do so respectfully. To me, at least, the “law of polarization” offers neither explanation of what happened at Stanford nor any kind of solution. But again, I haven’t read Sunstein’s paper, and perhaps reader can explain the fix that French suggests.

16 thoughts on “NYT: David French on disrupting speech and “the law of polarization”

  1. I don’t have much to add to the substance, but would say that it is a good thing that the NYT is moderating its position. Whether the Times is following society’s evolving views or leading them (as the “paper of record”) doesn’t so much matter. The direction toward moderation is a good sign.

  2. So why has everything become more polarized lately?

    A puzzling question, but remember— we’re atheists. Can we find a way to blame this on religion? I think we can.

    The Religious Right has had decades to entrench itself into US politics. Christian Nationalist politicians are the very definition of a closed group. If your rationale for policy and law is doing What God Wants, there’s no debating on the issue. The only debate is whether a diverse country of many beliefs should be considering that line of support, and since people aren’t countries, those individual politicians and voters think they should.

    Introducing religion into a secular government polarizes those who want this and those who don’t. And it creates an inflexible, hard line between the godly and the ungodly on one side, and dogmatic theocrats and the standard bearers of tolerance on the other.

    After Obama, Trump sought power from a primarily religious base of constituents and their Christian Nationalist thought leaders. Though he never seemed particularly religious, he gave religion the lip service it requires and pounded in that line right across America.

    I don’t know. Blame religion. Seems as good a villain as any.

    1. No need to hesitate here, Sastra. Religion is indeed a strong, villainous factor contributing to the present-day irreconcilable political polarization. This is why I think the most effective way to proceed to alleviate this polarization is to step up our efforts in criticizing religion and thereby ensure the firm separation of church and state, in other words, a secular society.

    2. Yet, Sastra and Stephen, Canada, a country where religion and religiosity are invisible in public life* (except for ostentatiously censorious Islam) is afflicted by the same intolerant woke leftists and race hustlers as America…yet there is no outwardly Christian or observantly Jewish religiously constituted opposition here. Indeed the mainstream churches are committed to social justice and open borders if they say anything at all.). The religious fomenting that the Left should be worried about gets the same free pass, as in America.). When heterodox speakers are silenced by mobs or fired by craven administrators here, it barely makes the news and the prevailing opinion is, “Wow, that speaker must really have been an evil racist transphobe Trump supporter then. after all. Glad I disagree with him. Good riddance. We don’t need that sort in Canada.”

      Those with power just don’t like dissent and the Left sees no need to allow it now that it has finally come out on top, among the chattering classes, anyway. (Economically not so much because we don’t have enough super-rich people for them to pay all the taxes, so the tax bite has to extend down the pyramid to the middle class, which then bears some consequences for its beliefs.)

      Sometimes I wish we did have a Judeo-Christian right wing to provide organized and financed opposition to an increasingly censorious lefist political class, which extends from petty schoolboard trustees and bureaucrats up to the Prime Minister. I cheer when the Supreme Court rules that the government over-stepped when it ordered a prairie pastor to cancel church services during Covid. You wouldn’t want a theocracy but it would be good to see someone stymie the Lefist agenda sometimes. And here I am willing to concede that religion may have been, and may be, a more pernicious force in America than in Canada. I’m just arguing that you can’t excuse Leftist totalitarianism as a well-intentioned defence against religion. Intolerance grows in its own soil.

      I think the left needs to look to itself for its intolerance of dissent and heterodoxy, and not blame it on dark religious forces from outside, unless it wants to take a closer look at Islam which it shows no sign of doing. But I don’t think that’s who you mean when you say, “Blame religion.”
      * The closest Canada has to a national religion is universal free tax-funded health care no matter how much it costs with no private option. Anything else is heresy and brings ex-communication. Seriously.

      1. The UK has the same religion. It’s not a bad thing to have, but it would be better to be allowed to discuss its merits and demerits and ways to improve it.

  3. “But what French’s solution doesn’t explain—at least to me—is why things have become more polarized in recent years.”

    This is the million dollar question. Why now? The answer to the question will be debated by scholars for many decades to come. I have a very tentative answer to the question.

    There emerged in the 1970s a group of wealthy hard righters, collectively referred to as “movement conservatives.” They perceived that the nation was still operating under the ethos of New Deal liberalism. They were determined to change this, particularly in the economic area where they hoped to reverse the New Deal welfare state. Their methods were direct mailing, talk radio, and later Fox News and the Internet. Although their goals were economic, they found that cultural issues were the key to increasing support for the Republican Party. By attacking the Democratic Party as the party of the liberal elite that favored minorities and debased the silent majority, they slowly gained support. Above all, they were patient, willing to agitate for decades to reach their goals. By the 1980s, their efforts began to pay off. The Democrats’ 50 year stranglehold on Congress came to an end as Republicans came to control for it for many years through the present. Reagan was elected twice. But, even now, with Republicans competitive on all levels of government throughout the country, the Republican establishment still controlled the Party. It took the emergence of a demagogue – Trump – to change this. He had and has the unique ability to appeal to the lowest instincts of the Republican base, which was not concerned with the economic goals of the movement conservatives, but the fears of cultural decline, including the perceived threat to “religious liberty.” The movement conservatives had lost control of the monster they unwittingly helped to create. If Trump had not rode down the elevator in 2015, American politics, in my view, would have been very different today. Certainly, there would have been polarization, but not nearly to the degree it actually exists. The country would not have been on the verge of collapse. Trump is an example of where one charismatic person, instinctively understanding the mood and fears of one segment of the population, is able to change the course of history.

    At least for me, the rise of Wokeism over the last half decade or so is harder to explain. I don’t think it was simply a reaction to Trump. Perhaps for some members of certain minorities and their allies a tipping point had been reached. Believing (rightfully or wrongfully) that after a half century from the civil rights movement and LBJ’s Great Society, their promises have not been fulfilled. It was time to take direct action through cultural dominance of education institutions and certain corporations. Thus, it is possible that Wokeism would have appeared on the scene independently of the rise of Trumpism. But, I think it will take the work of future scholars to provide a more comprehensive understanding of the rise of Wokeism. Also, future scholars will have to grapple with why non-Woke Democrats (the majority of the Party), hate Republicans with the same burning passion that Republicans hate them. The more secular nature of Democrats and their fear that Republicans are destroying democracy will undoubtedly factor into the analysis.

    1. Like other culture wars, ‘Woke-Panic’ is a phony wedge issue used to distract us while the uber-rich and powerful consolidate ever more wealth and power.

      Why are things so polarized in the US? 100 individuals own more wealth than 90% of the population.

      The worship of greed and free-market capitalism (promoted by both Republicans and Democrats) is the religion that is at the rotten core of the division and pathology of our society.

      Politicians and their wealthy donors don’t care about race, abortion, religion unless these wedge issues can be used to maintain and increase their wealth and power.

      They wouldn’t hesitate for a millisecond to get abortions for their mistresses.

      1. Unless I am mistaken, you claim that the right wing invented “Woke-Panic” and the culture wars in order to distract us from capitalism and the control by finance and the elites. But surely you don’t deny that the left, BLM, SJW and their ilk themselves
        sought to mandate their doctrines on free speech and DEI, thus giving the right the ammunition to start their campaign against the left? This goes back almost twenty years actually, when the left’s manifestations of authoritarianism were baldly visible. And now that I think of it, it goes back to the time of Stalin, when the left ignored
        the atrocities of Stalin and started their anti-America campaign. If BLM and SJW are truly for freedom, democracy and equality, why are they busy attacking white racism instead of capitalism? instead of economic inequality? Because they prefer a race war to a class war. And a class war is needed; note: I am as far from socialist as possible but it is clear that economic inequality and related power issues are the real enemy; so why are BLM, SJW and other rebels ignoring it?
        Answer: because they are just seeking power, not societal change. And they are doing it by shaming whites and liberals and the middle class, hardly a winning strategy as witness the backlash against them.

        1. Seizing power was, of course, the explicit goal of Lenin & Co. They thought it was for the purpose of societal change, but within 20 years their Party had made clear that power was the main act. In the case of the wokies, they have achieved a fair amount of institutional power through their DEI bureaucracies. The zealous pursuit of Power seems paramount in a significant sub-population on the Left. Of course, this does lead to certain short-term miscalculations here and there.

      2. This is a rather hilarious comment, for two reasons.

        (1) The whole “100 individuals own more wealth than 90% of the population” thing isn’t the real problem. It’s not even close. Saying that it’s just 100 very elite people is just a nice bedtime story people tell their minds to convince themselves that they aren’t part of the problem and, more importantly, that the solution won’t involve them giving up any of their own economic privilege. In fact, the 400 richest people in the US own about $500 billion dollars, and if you took every cent they have and redistributed it to every American, it would come to $1,451.59. Do you think that’s going to fix income inequality? No, instead, we need to face the hard reality that we need to heavily raise taxes on everyone making north of at least $150,000, and we probably need to go lower than that. But that’s a stark reality neither the “woke” or people like you seem to want to grapple with.

        (2) The one thing the “woke” have in common is spending 99.9% of their time criticizing everything under the sun except raw economic inequality. Oh, sure, they’ll intimate to inequality of “marginalized groups,” but they’ll never say that “marginalized groups” should include everyone who doesn’t have enough money, despite the fact that economic class (not race, religion, gender, sexual orientation, or anything else) is the number one factor in deciding basically every single life outcome there is. Seems like it’s the not people “panicking” about the woke who are trying to distract us, but rather the “woke” themselves. And that makes sense, as the vast majority of the “woke” are upper-middle class to upper-class people.

        The main reason I so hate wokeness is because it’s such a clear distraction from economic inequality, instigated and continued by people who are comfortably ensconced in their own soft socioeconomic blankets. Our academics, most of our media, half of our politicians, etc. are busy grappling with race, sex, gender, religion, and so on, and conveniently ignoring the number one decider on whether someone’s life will actually be of quality: their economic class.

      3. I call BS on the claim that 100 individuals own more wealth than 90%.
        The closest I can find is here (paywalled):

        Assume this itself is true. Many in the bottom half (not the bottom 90%) have zero or negative net worth if they live paycheque to paycheque, (or welfare cheque to welfare cheque), rent their home, have only a worn-out car and furniture, and no savings. Social security credits are not counted in net worth, nor are tattoos. Net worth of a minor child is by definition zero. Figure in some medical or instalment debt and the total net worth of 165 million people (not households) could easily be less than $100 billion. That doesn’t mean they don’t have money to spend. It just means they haven’t saved much or accumulated equity net of home-equity borrowing.

        I have no trouble believing that the top 50 people have each more than $2 billion net worth, much more, likely, so in reality the bottom 165 million have more than $100 billion net, maybe double that, concentrated among the better off of that bottom half, let’s say from the 40th to 50th percentile.

        The aggregate net worth of the folks in the slice between the 50th and 90th percentile is immensely more than that of the bottom 165 million. The idea that 100 people have more net worth than those 132 million well-off middle and upper class people plus the 165 million below them stretches credulity, especially since the number is partially constrained by the Bloomberg story about the bottom 165 million. The top 10% in income (not wealth) cuts in at about $100,000 in 2020, and yes goes steeply up from there. But, if you can produce the numbers, I’ll read ‘em.

        1. Also, “net worth” is a very weaselly way of calculating things. Much of the net worth of the super-rich is in illiquid assets, or assets that see significant shifts in value over the course of a week/month/year and would tank in value if they attempted to sell all or a very significant chunk of it (e.g. Elon Musk and Tesla stock).

  4. I think Ezra Klein’s book _Why We’re Polarized_ does a decent job explaining this. Not sure I can do it justice with a summary, but as I understood it, it’s that the the system is working largely as designed, where parties are shortcuts for voters to use instead of having to know everything about the candidates when voting. And there really is value to this! But it leads voters to start treating parties as part of their identity, which parties go along with. And it explains why the battle moves to the primaries – by the general election, very few voters are persuadable. Which in turn encourages parties to cater to their “base” – their most extreme members.

    The result is a minority party whose incentive is not to compromise and work with the majority – it’s to use tricks and antagonism to become the majority next time around.

  5. I think the dynamic nowadays is that wealthier, more highly educated Democrats who dominate the news media, education, Hollywood, the tech industry, and government are punching down at the poorer, less educated, and more religious white working class.

    The traditional GOP coalition collapsed in 2016, and the GOP as presently constituted has no idea what it wants. All it knows is that it wants to punch back at the smug Democrats who despise it.

  6. One asks for explanations of polarization and one gets example after example of polarization! All perfectly reasonable from the point of view of the respective–and respectable–writers. Let’s take a short cut: the cause of any problem is always “those people”.

    Not to be too flippant and ironic, but polarization has increased because the middle has largely disappeared. There are countless reasons why people moved to the poles out of conviction or group think or reaction. Let them move. But those of us who by temperament are more moderate, who by conviction are more classically liberal—who favor tolerance, free expression, free association, intellectual rigor, and so on—may disagree, perhaps vehemently, on an array of policy issues. But what unites us are the fundamentals that allow for vigorous debate and engagement on those other issues. The fundamentals that allow us to coexist in relative-yet-oftentimes-uneasy peace. The fundamentals that are increasingly under attack by not only “those people”, but also by the illiberal people on “our side”. To call other issues “nonfundamental” is not to call them unimportant. Climate change policy matters. Issues of economic inequality matter. Government fiscal responsibility matters. But our organizing structures and principles of collective governance and individual freedom and toleration and compromise matter more.

    In short, it became uncomfortable to be in the center as illiberal factions gained power and influence in the institutions that most mattered to each of us individually. I might be a RINO; I might not be a patriot. I could be a Putin apologist, a conspiracy theorist, a sexist, a racist, a fascist, a Nazi, oh my! So, many silenced themselves and migrated with the crowd with whom they most shared social ties and preferences on the nonfundamental policy debates of the day. In their like-minded social settings many came to fear or revile “those people” of the other side—cutting down a broad swath of diverse people with a single rhetorical stroke. Others feared that if they spoke out about such developments then their peers would mistake them for “one of those people”. Few seemed to fear the dissolution of the system bequeathed to us—a system imperfect yet capable of great progress. Yet we, as a society, are squandering much of that inheritance; widespread intemperance and ignorance and neglect—from the “rabble” to the “elites”—are beginning to undermine the conditions for individual flourishing. We thus rush deeper into the comfort and protection of the tribe.

    Or we stand our ground. Tune out the polarizing rhetoric. Temper our antipathy toward and increase our engagement with those who, while very unlike ourselves in many preferences, attitudes, and beliefs, will defend the fundamentals of a free society—even if it means that we then fight those same people on other policies on another day.

Leave a Reply