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I'm going to pick apart a very narrow part of this Morning Shots because I think a lot of the right-wing

(and even FIRE) takes on the have been maybe lacking context or understanding of just what respect the 5th Circuit (which this Judge is a member of) has in the broader legal community? I'm also going to ignore the students' heckling as it's outside the specific points I'm getting at, though I do acknowledge it's an important aspect of the situation there in total.

For one, the 5th circuit has no respect amongst the broader legal community, outside of the few who take the position that one must respect all federal judges by virtue of their station as judges (a view I don't take, to be clear). It's a lawless circuit that regularly decides that it is unconstrained by Supreme Court precedent, whose judges on the bench often act more like Trump (and Republican) press spokespeople than actual impartial observers of the law. Would we expect people to treat Kash Patel with respect if a college invited him to talk just because he was the Principal Deputy of National Intelligence?

I'm being a bit hyperbolic with the last point, but context absolutely matters. MAGAing from the bench erodes credibility. Would I want law students to not shout him down/heckle him such that he can't speak or would I want the administration to interrupt him? No. But we're treating this judge as if he has inherent credibility when he's established, repeatedly, that he has none.

One more quick nitpick - "while some critics on the left have focused on Duncan's petulance, that's not really the key issue here, is it?" I think is completely wrong. First, if we're to afford him enhanced respect due to his station, we would expect him to act better than law students on campus, no? And wouldn't his failure to act better than the law students affect our relative weighing of his value as a speaker? And finally, this is a point I don't see brought up a ton, is the rest of the campus supposed to react politely and respectfully when the right-wing organizations on campus invite trolls to the podium who are just there to own the libs?

Like, you look at his responses to questions (valid questions about his prior rulings!) and he was clearly not there to discuss his legal jurisprudence with any sort of criticism. You might say, then, that he was mad that Stanford didn't afford him a safe space to air his views without pushback. Again, while I appreciate and hope students act more respectfully in general, Duncan was clearly there to own the libs - do the libs have a responsibility to just sit there and take it because it's the libs responsibility alone to be polite?

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Thank you for the link, Ms. Smith. (For others: the link goes to a Slate report that downplays the student disruption, casts the associate dean's remarks differently, and emphasizes how the point of Duncan's visit was clearly precisely this outcome.)

The essential change in the account is that the students who created a disruption did not actually "drown out" Duncan's ongoing speech, but that their shouting began before his speech, the adminstrator "calmed" the students, but Duncan chose to skip the speech and go straight to the combative questions. He came ready with a cell phone to record all this and got what he came for. Slate foregrounds Duncan saying, "You're appalling" twice to a student; the video shows her shouting twice first, "You're disgusting." Slate knows its audience is progressive and will join in focusing on the judge's misjudgment. Someone on the Right looks at that exchange and is struck by the student's disrespectful and emotional provocation, not the judge's relatively calm response. The affect is entirely to Duncan's benefit--he obviously knows the way political theater plays to an audience and the protester (and perhaps Slate, which shouldn't have posted the clip) doesn't.

So what do we learn from this modified account? That this whole thing was a set-up; a trap the students and administrator walked into, just as others like them have walked into the trap hundreds of times before. Duncan and the Federalists got this story out to news venues and the Stanford administration asap, framed as they planned, and scored another PR victory. Call Duncan and his ilk any names you want, the fact is they know how to manipulate liberals to get the outcome they need and liberals don't have a clue how to avoid it.

The way to avoid it is this: avoid it. Don't engage. Restrain yourselves. Don't show up. Don't be led by your righteous indignation. Don't let your group-reinforced theatrical anger make you puppets of your adversaries. Don't let your felt need to be heard damage your cause. **Do not feed the trolls.** As I wrote earlier: the trolls have read Saul Alinsky and you apparently have not.

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The issue is not the 5th circuit, the issue is reception of a speaker at a law school. The secondary issue is whether officials at the law school failed their duty to keep order in a lecture hall so that a speaker could be heard, and if the format permitted, questioned on their views. We do not care about first causes as rationalization for uncivil behavior by the listeners or the speaker.

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"while some critics on the left have focused on Duncan's petulance, that's not really the key issue here, is it?" I was going to respond to this line as well but I think you've said it much better than I could have!

I think the judge went there knowing full well this would happen, the students obliged (some of them quite idiotically, to be fair), and now he gets to dine out on his being a victim' for months to come....

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It's a living. Everyone needs a con, otherwise you don't eat.

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I appreciate your points, Jacob, but I don't see Duncan and the 5th Circuit as the issue here. If Duncan were the issue, then the question would become: What is the borderline between speakers who should be shouted down and speakers who should not be? An unanswerable and therefore unproductive question.

The actual question is, How should people behave when a speaker is unacceptable to them? Since I was a student in the mid-'60s, people on the Left (which would include me, then and now) have often answered that question with, "Shout them down!" What has that gotten them? The illusion of righteousness and nothing more.

It's now a scripted routine. Rightwing student groups invite a controversial rightwing speaker in order to create a display of leftwing illiberalism. Right on schedule, leftwing students show up and perform the standard script that is now inevitably recorded and sent out on media showing how it is the Left and not the Right that persecutes its opponents and denies them free speech. (This time we got the bonus of a scripted propaganda performance.) The rightwing students accomplish their goal and those on the left simply can't grasp the concept. Duncan was absolutely right: That was a set-up. But he was mistaken about who was being set up. It wasn't he, as should be obvious now.

As a college student in the '60s, the issues for me were free speech and civility. I was pained by seeing people I agreed with behave in a way I thought was ethically wrong and counterproductive. Many decades later the issue for me is the stupidity: How can these supposedly smart people let themselves be used as props over and over and over? What addictive reward leads them to walk into the same trap every time? It's endless performative self-righteousness, without even a hint of an idea that actually making the world better has to be harder than shouting slogans and making speeches that true believers will applaud.

Basically, as I see it, the biggest change since the '60s is that the Left stopped reading Saul Alinsky and the Right started to, so now, instead of just making their own errors, law students on the Left can be manipulated effortlessly by the students of the Stanford Federalist Society. (Perhaps unsurprisingly, the judge appears to have been less capable than the SFS students in this regard.)

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All of my life, progressives have had to endure people on the right calling us "bleeding hearts" and portraying us as pusillanimous cowards whose goal is to nanny Americans, thus creating a society of soft, weak, individuals unable to withstand life's normal trials and tribulations, and who would ultimately graciously submit to an overweening centralized power if it made them feel safe. Just because we sought to use government power to care for the less fortunate.

Which is why this kind of behavior by young progressives infuriates me. When we demonstrate that we *can't even listen to someone talk* without experiencing "harm", "hurt", "pain", "trauma" (my favorite), and ultimately feeling "unsafe", we are basically copping to that time-honored right-wing caricature.

The proper term for what these students are experiencing is "offense", and it is an insult to people's intelligence to characterize it as anything worse. And if someone can't deal with offense without likening it to a debilitating, life altering psychological experience, that person is not ready to be an adult in a free society. They'd be a better fit for a religious cult.

The people who are teaching high school and college students that such egregious, performative melodrama is the best way to steward a political movement are failing our kids. And I think it's evidence that too many grown adults are unable to let go of the callow self image of a young crusader fighting the good fight against the stodgy, staid older generations. And thus leading them to want to be accepted by the young as peers, lest they experience the periodic discomfort (and reminder of their age) that comes with the duty of acting as their authority figures.

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I agree, he shouldn't have been shouted down and I agree wholeheartedly that shouting down speakers, especially those brought in specifically to create "illiberal woke leftist" headlines is counterproductive (I specifically said I wasn't going to address the students' heckling in my comment - to be clear, I think it was dumb and counterproductive).

I may have gotten myself a bit wrapped around the axle with my specific animus towards the 5th circuit, but the core point is more of a meta one. Does every single person invited onto campus by any organization (or in this specific case, a right-wing organization) deserve our automatic respect? Specifically, how should we approach and frame reporting on these incidents?

I take issue with straightforwardly framing this as an "illiberal woke student" situation. When things like this happen, do we unilaterally condemn the students while noting the fact that the invited speaker is a troll/demagogue barely an afterthought?

To be a bit more clear, I feel like when we report this and approach this in a fashion that centers the troll speaker as inherently legitimate and prop up the perspective that the left-wing students are uniquely wrong in this situation, we ignore a ton of the context. Context which frames the situation as a whole - what's a better framing, "Right-wing troll unfairly heckled (though he didn't act great himself!)" or "Everyone acted badly here. Students shouldn't have heckled, but right-wing troll was there to troll and didn't establish his/her demanded deference?"

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Does the definition of a troll include those who take their substack blogging practice out on us? 25/44 of the instances of the word troll on this page are from wrapping your meta around your animus axle.

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He was invited to speak by a presumably approved student group of the University. They gave him a space, as they would presumably have done for any other approved student group. I don't think it requires respect for the speaker to not trample all over another group's University provided rights (to invite people and hear them speak in University facilities).

If you don't like the speaker, protest outside. If you don't like the group for their decisions, protest them. If you don't like the University for its decisions, protest them.

Ultimately I don't think the power to shut down speech should rest with any handful of people who can shout loud and be disruptive. That power will quickly be abused (at least it would if the yellers weren't busy scoring own goals in the court of public opinion).

People want results right now, and the yellers tell themselves they got what they wanted, by stopping the speech, but hearts and minds take longer. I am reminded of the Edmund Pettus bridge which I visited a few years ago. Now it isn't the same in all kinds of ways, but those who wanted to stop the other side succeeded that day. They did not succeed in the long run.

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Mar 13, 2023
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"Free speech" is utterly beside the point here, in my view, Max. The notion of "free speech" that we consider sacrosanct concerns government constraints on it, and that's not in play here. No private institution is bound by that constraint. Nor would extra-constitutional invocations of "free speech" in the context of protest have any meaning whatever if they referred to the right of protesters to suppress speech by shouting over it, rather than to the right of suppressed speech to be heard.

As for what actually happened, this string discusses the Charlie Sykes's report: "For about ten minutes, the judge tried to give his planned remarks, but the protestors simply yelled over him . . ."

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Mar 14, 2023
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Thanks. You have a good evening too!

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Mar 13, 2023
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Don’t be too hard on them TC. It’s true of the Left worldwide. I think it’s because of our worldview that puts us on the Left. We’re just not ruthless enough. And I definitely include myself in that.

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What the Trump/McConnell/Federalist team did to the courts is what is damaging our democracy the most. They have installed ideologue judges who seem to have no concern about what the laws actually say or how many people suffer due to their ruling. When parties can choose these judges for absurd cases, having the courts as a place to turn against fascism is lost.

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We are talking about activities on a college campus where students are to learn the discipline of living by reason. If reason cannot defeat demagoguery on our top college campuses, we are lost.

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Well, when has reason ever defeated demagoguery, on campuses or anywhere else?

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Yes, but a key component of reason is understanding who is a good faith actor and who isn't, and to apportion good faith engagement accordingly.

"Living by reason" doesn't mean engaging trolls in good faith who are just there to bomb throw. In fact, I'd argue that engaging demagogues and trolls in good faith plays into their goals of misinformation - a key point of reason, again, is knowing when and where to engage.

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I would prefer people asking pointed questions calling out Trolls during a Q and A session on their bullshit instead of simply shouting the Trolls down while they speak. Charlie Sykes did a great job at this when interviewing John Bolton and Paul Ryan recently. You don't think that's an acceptable alternative?

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I do, but if you look into the specifics of this incident the Judge refused to answer pointed questions during Q and A and heckled the students asking pointed questions

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I am saying have that Student ask that question without the preceding heckling. Let the judge give his speech, then have that student and a number of others ask questions challenging his views. If he refuses to answer, then he is the only one that comes out looking bad.

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I agree, I think the prior heckling was bad. I don't think it full came across in my comment since I was focusing more on the meta of it, but my issue is framing this as a specific student problem and mentioning the judge's poor actions as barely an afterthought. And also the automatic deference we seem to give to right-wing trolls invited to campuses.

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True, but he gets a pass (on answering) because he was heckled to begin with. Though I'd agree, he did his cause no favors by descending to the level of heckling back.

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I'd agree, but then I'd say that the students in question still shouldn't have shouted him down, but should be working to effect change at Stanford through other means. Can they use that reason to attract enough support to pressure the university to change? Can they get enough support that the story isn't a dozen (few dozen?) hecklers, but instead a few thousand student protesters?

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Why can't the do both? How has taking the high road worked out?

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" How has taking the high road worked out?"

I've seen and read about it working out pretty well over time. Through my lifetime and my parents' lifetimes I've seen a considerable march of progress on civil rights. It hasn't been a smooth and straight road, but it is highlighted by the various acts of taking the high road vs. the low road. And I believe that is true because taking the high road is hard, and it highlights the sincere belief in the justness of the cause in question.

I'd ask the question, when has taking the low road truly advanced causes you believe in? My mind is only coming to the noble cultural touchstones of those taking the high road. The low road is whate the opponents of such causes took towards the ash-heap of history.

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The reality is that the vast majority of students aren't there for any higher, lofty purpose other than to get the piece of paper that is the degree so they can work for a living.

But we're still not talking about reason - the focus on the "illiberalness of the students" and the "students should be learning reason" shades the conversation. If students organized to pressure the university to, what, ban conservative trolls from coming to speak even though student organizations who want to troll invite them, what would the response be, then? What would the response be if a thousand students came to protest (keep in mind though, Stanford Law school only has something like 550-600 students at any given time. We're talking about a tiny number of people)? "Illiberal students in their bubble shut down conservative judge who just wants to present other perspectives?"

By framing this as a "Good faith conservative vs. illiberal students in their bubble," we're conflating good faith speakers with trolls/demagogues. My point above is that a key aspect of reason is separating the first from the second and understanding that fundamentally they need to be approached in a different manner because they have entirely separate goals. By lumping together "good faith speakers" with trolls, we do the bidding of the trolls.

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Jacob, There's no legitimate way to draw a dividing line between "good faith" speakers and "trolls": it's a spectrum, highly subjective, and the basic terms themselves are too vague for institutional application: "reason" will run in circles if it tries to use them.

But using informal language, the prime directive when it comes to trolls is that you do not feed them. The Stanford Federalists were "trolling the libs" and the libs did their bidding. Once that's happened it's too late to bemoan the defective narrative of good-faith vs. illiberalism--the illiberals have already framed themselves in it. I don't think we should in any way be excusing them for this outcome or blaming others. If the type of progressives who perform this sort of self-destructive political theater listened to anyone but themselves and liberal enablers they'd know to stop.

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I’m still trying to figure where I come down on this, but I’d say characterizing the Judge as a troll predisposes us to believe he should have been treated as he was. Am I hearing you say that his views and his activist MAGA-decision making calls for the response he got?

I side with the way the piece was presented in the Bulwark. It does students good to listen and engage with the ideas presented. If they are able to do that, then I’d trust them more to be our next leaders, because we all know they will be. Listen and understand thoroughly, cogitate on it and then respond. Better yet, schedule a separate rebuttal. When we shut down what we don’t want to listen to, we deprive ourselves of effective understanding and (so to speak) weaponry.

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Maybe he shouldn't have gotten the extent of the heckling he did, but I do recommend you read what the legal profession has been saying about the 5th circuit for a while now. Professor Stephen Vladeck has been good about this.

But yes, the 5th circuit has spent the past however many years acting like a troll circuit. In their rulings they act as if they are not bound by Supreme Court precedent because they don't care about being bound by precedent. They issue decisions going out of their way to grant Republican litigants everything they ask for, even if it's contrary to law and precedent. It's a very bad, very lawless circuit.

Also, I'm not sure it's worth it to spend the time/effort to schedule all of this to respond? While I agree that by unilaterally shutting down outside perspectives, we lose out, I don't agree that we should uncritically accept trolls and troll arguments for the sake of "understanding other perspectives." There's a reason we don't sit down and have a formal debate with every flat earther we meet. And I'd argue that that's an important thing for our next leaders to learn, though. Not just how to listen and engage with ideas presented, but also the wisdom to know when other ideas are presented in good faith (and should be engaged with) and when ideas are presented in bad faith only to get a rise out of the listener.

To bring back the example, our future leaders need to know that flat earth theory is wrong, but also that they don't need to approach with and engage every flat earth theory as if it were legitimate solely because it is a different perspective

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I hear you, and I'm not at all familiar with this guy. My concern is how easy it is to start lumping people we don't agree with into the bucket of troll / demagogue.

As for not being able to get thousands to protest, there are thousands at the school and plenty more in the surrounding area. How many can they get to care vs. how many there are in the organization that invited him? Beyond that, if the speech is problematic enough for Stanford they can discipline their local chapter of the inviting organization. Presumably the University has some standards for what they will tolerate?

Plenty seem happy to have trolls shouted down, but if all it takes is a handful of people to agree someone is a troll, won't we see most people shouted down? I can only imagine the troll list the MAGA crowd would submit.

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I said in a different comment, but I may have gotten a bit wrapped around the axle with my animus to this specific guy, but I do encourage you look into what the legal profession writ large has been writing about the 5th circuit. No bueno.

To try to be a bit more clear, I don't think he should be/should have been shouted down. I just really have a problem with the framing of these incidents that always seems to happen.

"The speaker demands our utmost respect and those illiberal woke students should sit and Respect the speaker, they clearly don't want to leave their bubble (though the speaker was acting badly too)." Why do we need to demand unquestioning respect for every speaker that is invited to campus? A troll is a troll is a troll is a troll and I have a problem with the fact that this isn't brought up at all in reporting/framing these things.

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Well, I am not going to prove I'm better than MGT by engaging in her antics myself. "Shut up" is not an explanation.

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I kinda responded to this concept elsewhere as well, but I view it more as respect for the form of interaction. As a university student, they have access to events like this, where a speaker will come in and often times have a Q&A. They can register their protest in any number of ways that don't destroy the event. They can even use being called on to just issue a damning statement to the individual and then sit down and let the next person talk.

My mind goes to court, where respect for the institution (of course, backed up by force) means that we let people speak in their turn. If we don't like the prosecutor, we don't scream at her in court, we vote against the DA in the next election. Certainly not a perfect analogy, but for the students, if they don't like the actions of a student group, take it up with the university that approved them.

Ultimately if we excuse shouting and screaming when it feels right to us, we will lose the benefit of having engaging, controversial, entertaining, etc. speakers on campus because that shouting and screaming are going to feel right to some for just about any speaker.

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In follow ups, I've been trying to be clear that I'm not a fan of the students heckling/shouting down the speaker. My original comment specifically noted that I wasn't going to focus on that - my main issue was with the framing of the narrative.

If we're going to use court as an example, yeah we don't scream at the DA (or prosecutor). But if the DA is spouting nonsense, or bringing up irrelevant arguments, or even going down a line of questioning that's trolling, I'd be a bad attorney if I didn't register "objection, relevance." Just because the court has rules and procedures and we (within reason) listen to what people have to say, doesn't mean judges won't routinely cut people off if they're not focused on the case at hand. I've seen judges cut people off after they're meandering/not addressing the questions with just a (paraphrased) "I want you to answer the question. Nothing more and if you have anything else to say I don't want to hear it right now."

To fuse metaphor and point, yeah, let people speak. But when they're trolling, or bringing up bullshit arguments, I don't feel the need to afford them automatic respect by dint of their status as Speaker. I'm well within my rights (and I'd argue, many people should exercise this right) to just reply "Objection, relevance." Again, when we lump in engaging, controversial, entertaining" speakers in the same group as "trolls and demagogues" without distinguishing, we privilege trolling and demagoguery over an actual exchange of ideas.

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Good points and good discussion.

For the court thing though, is the the other attorney or the judge who gets to say that, not a random spectator. So within the rules of the occasion.

As for the troll thing it could depend a lot on just how trolling the person is and or how much time the people in question allow him or her to do so. This guy may well be a known troll as a speaker, but then again, is he? Having despicable views doesn't make one a troll as a speaker, per se.

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I mean, I leave it up to you whether you categorize the 5th Circuit and its judges as "troll" vs "has despicable opinions" but the legal community writ large has had a problem with the 5th circuit for a long long time.

But like, how else am I supposed to categorize a circuit that has decided that it is unbound by Supreme Court precedent as long as it lets the 5th circuit rule in favor of the Republican litigants and against Democratic litigants (even if the opinion makes no sense at all).

This is the circuit that ruled in favor of Ken Paxton in NetChoice v. Paxton, ruling that Texas could make it illegal for private social media companies to do any sort of moderation because the First Amendment was chiefly "a prohibition on prior restraint and, second, a privilege of speaking in good faith on matters of public concern" contrary to ages and ages of First Amendment jurisprudence. Lawfare in general is very good and I recommend this link explaining this specific case: https://www.lawfareblog.com/fifth-circuits-social-media-decision-dangerous-example-first-amendment-absolutism

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Thank you Jacob a thousand times over for properly framing this issue. It is the blind spot of so many people who frame EVERYTHING as a horse race…

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This! 🔥

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Two prominent Stanford profs are among the biggest reason-challenged COVID disinformationists.

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