TIME FOR ‘UNFETTERED COMPETITION’
“School choice is sweeping the nation,” writes Harvard economics professor Roland Fryer in a recent piece for the Wall Street Journal. “But school choice as we know it won’t fix the American education system.” What is needed, he argues, is “unfettered competition” instead of the piecemeal, “half a loaf” approach with which we are currently saddled.
Fryer alludes to the stunning groundswell of support for school choice in recent years. Since 2021, ten states have passed universal choice measures. It’s a positive development for the world’s most prosperous and powerful nation, which incongruously lags behind many of its peer and non-peer competitors in scholastic outcomes. As Fryer points out, the United States came in 36th in math and 13th in reading in the 2018 Program for International Student Assessment. It’s hardly an adequate result for a nation as bold and innovative as our own.
Despite some encouraging signs when it comes to school choice, Fryer argues that our current system remains “more patchwork than panacea.” Against the backdrop of standardized and homogenous public-school curricula, a full-fledged embrace of the free market is necessary if we are to fully unlock our young people’s potential.
Protect The 1st believes school choice supports the full expression of the First Amendment. The First Amendment’s guarantees of free speech and the free exercise of religion must include room for parents to choose schools that reflect their beliefs. Doing so will have the added, bonus effect of alleviating some of the non-stop controversies that so dominate the educational discourse of late.
Consider the endless arguments over textbooks and curricula, from the banning of literary classics like 1984 in Iowa to the “stench of animus” towards religious student groups in California. Consider the persistent attempts to incorporate ideological instruction for children as young as four years old.
With public schools having a monopoly on public education dollars, the only option for many who can’t afford private schools is to accept what’s dished out or simply pick up and move. More choice means more freedom for parents to guide their children’s education by selecting schools that align with their values, or offer education of superior quality.
There has to be a better way, and Fryer is correct that our current Balkanized approach won’t cut it. Advocates must be bolder, he says, submitting that if “we can fully commit to free market principles in education, we can create an education system that unlocks the talents of every student in our lifetimes.”
One way to do that is through education savings accounts, which he writes “allow parents to channel public funds to a variety of educational services, from private-school tuition and microschools to tutoring and online courses.” By funding ESAs at a level comparable to public schools, you give parents real purchasing power. Competition and innovation will result. That is the true underlying principle upon which school choice operates.
Want to send your child to a school that meets all the state requirements but is also a Christian, Jewish, or Muslim school? Want to send your kids to a school with a great literature program? Or one with more of an emphasis on STEM? School choice does that, but first you have to end the public monopoly on education for everyone to have those choices. And we won’t get there unless advocates double down.
Public Versus Private Speech On and Off Campus: Can a Professor Be Fired for Espousing Extreme Views?
The Academic Freedom Alliance recently released a guidance statement regarding campus protests over the Israeli-Gaza war. It’s a stirring call for a recommitment to basic principles of free speech at colleges and universities. It’s also a reminder to differentiate between private speech by professors in their personal capacities versus efforts by some to politicize the classroom.
Reposted in full by the Volokh Conspiracy blog, the statement reads (in part):
“Professors must enjoy the liberty to discuss and even promote controversial ideas and to present controversial materials to students in their classes. Professors have an obligation, however, not to take advantage of their captive audience of students by introducing ideas or materials that are not germane to the subject matter of their class. Likewise, professors have a responsibility not to exploit their privileged position to attempt to indoctrinate students or to subject them to political or ideological litmus tests or pressures in their classroom assignments. Nor do professors have a right to compromise the education of their students by conducting their classes in a manner designed simply to advance their favored political causes. Universities must resist calls to censor what is taught in classrooms, but they must also ensure that classes are used for proper educational purposes.
“Professors, like other members of the campus community, should enjoy the freedom to speak and act as citizens. When speaking in public in their personal capacity, professors may give voice to controversial and even extreme political and social opinions that others might find offensive or disturbing. When professors at American universities speak in public in a manner that is lawful under the First Amendment, universities should stand behind their right to express such views. Universities should insist that professors, as well as other members of the campus community, adhere to content-neutral regulations regarding the time, place, and manner of public speech on campus, but universities must strive to apply those rules in an even-handed and consistent manner regardless of the substantive views of those expressing themselves. Universities should refrain from punishing members of the faculty simply because some think their private political speech is intemperate, uncivil, dishonest, or disrespectful. Professors should be judged and held accountable for their professional speech and conduct, not for their political views.”
It's hard to disagree with such a cogent defense of free expression on campus, which indeed is the place where difficult subjects should be respectfully discussed and debated. But we do.
We agree that it is important, as the statement points out, to consider the fora when adjudicating the appropriateness of speech content by professors. On the other hand, we must recognize that many American colleges and universities are private institutions with their own speech rights. Unless they are substantially funded by the public, schools are perfectly justified in reacting reasonably to the speech of their employees.
Case in point: When Cornell University history professor Russell Rickford told a group of pro-Palestinian demonstrators that he was “exhilarated” by the Oct. 7 attacks against Israel, he faced criticism from the administration, a petition drive to fire him, and demands from Sen. Kirsten Gillibrand (D-NY) for his termination. Instead, Rickford received permission to take a leave of absence. But make no mistake, Cornell would have been well within its rights to have fired Rickford.
There will always be a tension between the personal speech rights of a professor and the right of free association at a public university. Given the different status of public and private universities, it is impossible to describe a neat methodology for dealing with incendiary speech – just as it is difficult to legislate academic outcomes.
Consider Florida’s attempt to implement the Stop WOKE Act, which sought to ban schools and companies from promoting ideas of race- or sex-based blame to “privileged” students and employees. To be fair, there is no lack of idiotic ideology on campus and in the corporation. But that law, had it gone into effect, would have significantly chilled speech by professors within the classrooms, creating fear among anyone that so much as touched on race in the course of a lesson plan.
In enjoining the Stop WOKE Act, Chief U.S. District Judge Mark Walker called it outright Orwellian, noting that the law “officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.” The law remains blocked as of this writing. It is critical that we have such baseline principles for the preservation of free inquiry and academic debate on campus.
What such principles won’t do is negate the free speech and associational rights of private institutions. Nor will they inoculate a public university against the invisible hand of the higher education marketplace, which may well withdraw donor support and student applications because of vitriolic commentary, even when professors speak in a private capacity.
In the private sector, employers can hold employees responsible for what they say. Yes, they can fire them for it. And that’s okay.
There is something poignant and noble about the ACLU’s defense of the right to engage in antisemitic speech. From its founding through the civil rights era, ACLU has been led by many lawyers, advocates, and donors who were and are Jewish. They and their families would be the first ones to perish under the regimes of the people whose constitutional right to speak are defended by the ACLU.
The ACLU in 1978 famously defended the right of neo-Nazis to parade though Skokie, Illinois, where many Holocaust survivors were living. Now former ACLU president Nadine Strossen and social psychologist Pamela Paresky – both proudly Jewish – are taking a stand against efforts to use the law to punish offensive remarks about the recent mass slaughter in Southern Israel.
In particular, they criticize a proposal from Sen. Tom Cotton (R-AR) to empower the Department of Homeland Security to pull student visas and deport any foreign national on American soil who expresses support for Hamas. They write that such a policy would fly in the face of the First Amendment, which Supreme Court precedents extend to foreign nationals on American soil.
On the other hand, Strossen and Paresky are correct to call out Joseph Massad of Columbia University for writing that Hamas’ slaughter of innocents was “awesome” and Russell Rickford of Cornell for saying “I was exhilarated.” Strossen and Paresky correctly note in their Free Press piece, “Imagine if, days after the murder of black worshippers in a Charleston church by a white supremacist, Proud Boys marched across campuses celebrating their deaths.”
Or, we would add, if a professor called the murder of the worshippers “exhilarating.”
The condemnation of such speech by university administrators, professors and students would be deafening. At Cornell, Jewish students have had to shelter-in-place and avoid kosher dining halls to avoid violence. There has been a large number of similar, chilling incidents on other campuses. And the response by university presidents? By and large, mealymouthed statements that amount to profiles in cowardice.
It is hard to imagine students making the most of the promise of academic freedom when they must fear for their lives simply because of their religion. The academy has gone from creating “safe spaces” for students to avoid hearing dissenting views, to having to create safe spaces to protect them from actual violence.
At the other extreme, Strossen and Paresky are right that outlawing offensive speech, even if it has implications that could be dangerous, does not make bad ideas go away. As we’ve said before, banning anti-social speech tends to pump it up with a neon allure. And the only thing worse than the flag-waving Nazi next door is the secret Nazi next door who pretends to be normal but would denounce you if the moment were ripe.
We agree with Strossen and Paresky that people and institutions have – and should exercise – a First Amendment right to react negatively to offensive speech. They support, as we do, the right of university donors to withhold funding. But how far should critics go? Strossen and Paresky write: “We should also consider the cultural effects of such retribution. People say ill-conceived, stupid, even evil things all the time. Should they be cast out into the wilderness? Their livelihoods jeopardized?”
Perhaps the answer to these questions should be “yes.” We agree that the extremes of cancel culture have degraded the free exercise of speech in our First Amendment society. But make no mistake, “cancellation” or calls for disassociation by private parties and companies itself is a protected form of speech and association. Nobody needs to associate, in business or in life, with those who wish them or people they care about ill.
Where Strossen and Paresky are squeamish about firings and shunning, we are more worried about the cultural effects of maintaining tenure for professors and scholarships for students who advocate the mass murder of innocents. If someone is highly critical of Israel, the bombing of Gaza, or is pro-Palestine, they are well within the parameters of a fair debate. But if someone can respond to the murder of babies and find it “exhilarating,” then we question if it’s just the speech that’s evil.
It is important to remember that the First Amendment means no government suppression of speech. Private actors can respond to bad speech with speech of their own, including the right of association – or, by implication, disassociation, commonly called firing. Discrimination against people for what they say and do can be a good thing. Such distinctions mark the boundary between a culture of lively debate and a nihilist culture moderated by violence.
The Foundation for Individual Rights and Expression (FIRE), in conjunction with College Pulse, published its fourth annual survey on free speech at colleges and universities around the country. The survey included over 55,000 students from 254 institutions.
Bottom line: No school on the list earned an “Exceptional” or “Very Good” rating. The best earned a “Good” speech climate rating.
The top five universities in the country for their speech climates were Michigan Technological University, Auburn University, the University of New Hampshire, Oregon State University, and Florida State University. At the bottom of the pack is Harvard University, followed distantly by the University of Pennsylvania, the University of South Carolina, Georgetown University, and Fordham University.
The University of Chicago, which previously held the top spot in 2020 and 2023, slid in the rankings this year, but this was mostly driven by the inclusion of considerably more schools. In fact, this year’s survey is the largest ever conducted by FIRE and College Pulse, up from just 54 institutions in 2020. Other universities that consistently rank highly include George Mason University, Purdue University, the University of Virginia, and Texas A&M University.
Just because a school scores highly, though, doesn’t mean that students necessarily feel safe.
When asked whether they self-censor often, 18% of students at the top five schools for freedom of speech reported that they do, whereas 20% of students at the bottom five schools said the same. Fifty-four percent of students at the top five schools reported worrying about damaging their reputation because of someone misunderstanding what they have done or said, whereas 57% of students at the bottom five schools reported the same. Overall, the average score on “Comfort Expressing Ideas” at the top five schools did not differ significantly from that of the bottom five schools.
Far from being safe to express one’s beliefs at the top five schools, students at these institutions may only experience a moderately less hostile environment. This insight underscores how much work still needs to be done to make even the most tolerant American universities safe for academic freedom.
Other facts from the report stand out. Students at the bottom five institutions were more biased against politically diverse speakers and were more accepting of disruptive or violent protests to stop a campus speech. Consequently, deplatforming speakers at these institutions was successful 81% of the time. More students this year (45%) compared to last year (37%) reported that blocking other students from attending a speech is acceptable to some degree.
While opposition to a controversial conservative speaker appearing on campus was considerably higher (57% to 72%, depending on the speaker) than a controversial liberal speaker, controversial liberal speakers were still opposed by anywhere between 29% to 43% of the student body.
Hostility to a speaker of a particular political persuasion may be more akin to a numbers game, rather than the domain of one particular ideology. For example, in 2021 at Florida State University, Dr. Meghan Martinez’s class “The History of Karen: Weaponizing White Womanhood,” the title of which leaves nothing to the political imagination, received significant backlash, causing the class to be removed from the course catalog.
The report contains many more fascinating insights into the state of free speech across America’s institutions of higher learning. Protect The 1st congratulates FIRE and College Pulse for another informative and thoughtful list.
At first glance, the news that the National Constitution Center in Philadelphia has opened a gallery dedicated to the five freedoms of the First Amendment might strike producers and consumers of headline news as about as momentous as a national pie eating contest.
But take a look at Asha Prihar’s colorful blog at billypenn.com showcasing this exhibit’s depth, both historical and philosophical, and ask yourself if this exhibit isn’t well-timed and sorely needed. The gallery includes a 1789 letter from George Washington at the Constitutional Convention explaining to Quakers how the First Amendment, then awaiting ratification, would protect religious liberty. It tells the story of Elijah Lovejoy, an abolitionist who refused to quit publishing anti-slavery editorials in the face of angry mobs – and paid for his stubborn dedication to an ideal with his life. It tells the story of how the First Amendment advanced civil rights and how it relies on the good judgment of the people to tolerate vile speech upheld in the Supreme Court decision, Snyder v. Phelps (2011).
As one digitally strolls through this gallery, it becomes clear that the need of 21st century America for such an exhibit is cavernous. Case in point, an eminent law professor of our acquaintance, who teaches at a highly ranked law school, told us that when he recently began to teach the rudiments of the First Amendment, students balked. One asserted that a prominent politician with a national profile said things that were “evil” and that he therefore should be silenced.
The professor asked obvious questions:
Who decides what is “evil”?
Would you put an American – in this case, a major political figure elected by a majority of voters in his home state – in prison for saying something you regard as evil?
If we outlaw speech we don’t like, does it go away – or are we investing it with the glamor of the forbidden?
And what will you do when someone defines your speech as “evil” and comes after you?
These are the basic questions that were once presented in high school civics classes, not heard for the first time in a law school. In the face of these questions, this one law school student persisted –“but we just can’t let this guy go around saying things that are evil.” None of the professor’s questions penetrated. There is a level of senselessness in higher education, in public schools and in government – coming from both the right as well as the left – regarding the principles of free speech that approaches the satirical levels of Mike Judge’s 2006 masterpiece, Idiocracy.
So yes, the opening of a First Amendment Center at the National Constitution Center is something to be celebrated. So are the daily activities of the Free Speech Center at Middle Tennessee State University, which promotes the First Amendment through ad campaigns, a YouTube channel, and instructional materials for classrooms across the nation.
We cannot explain and celebrate the First Amendment often enough – the contentious, cantankerous, sometimes ugly, sometimes beautiful exercise of free speech that makes us Americans.
Jaiden Rodriguez, a 12-year-old, was pulled out of class last week and reprimanded by administrators at the Vanguard School, a charter school in Colorado, for displaying a Gadsden Flag patch on his backpack. The school claimed the Gadsden Flag is “considered an unacceptable symbol” because of its “origins with slavery and the slave trade.” In an email to Jaiden’s family, school administrators further claimed that the Gadsden Flag is “tied to hate groups.”
The Gadsden Flag originated in the Revolutionary War era when America’s founding generation bravely stood against British tyranny. The flag remains a symbol of liberty and resistance to oppression. That it has been adopted by all manner of groups today says nothing about its historical and enduring meaning to Americans.
The school cited a rule that forbade clothing that refers to drugs, tobacco, alcohol, or weapons, yet the Gadsden Flag violated none of those rules. Colorado Gov. Jared Polis, hardly anybody’s idea of an alt-right extremist, came to Jaiden’s defense. The Democratic governor took to X, formerly known as Twitter, to state: “The Gadsden flag is a proud symbol of the American revolution and [an] iconic warning to Britain or any government not to violate the liberties of Americans.” The flag is a “great teaching moment for a history lesson!” added Polis.
After Jaiden’s story went viral, the school wisely backtracked on its position. The Vanguard School Board of Directors released a statement of apology: “The Vanguard School recognizes the historical significance of the Gadsden Flag and its place in history. The incident is an occasion for us to reaffirm our deep commitment to a classical education in support of these American principles.”
PT1st commends the Vanguard School for quickly reversing course. It is refreshing to see an honest admission of fault on the part of the school. We especially commend Gov. Polis for his strong comments in defense of Jaiden, American history, and student speech.
The French concept of secularism – or laïcité – derives from the Enlightenment and the culminating revolutionary event that expelled, once and for all in France, the divine right of the king. Much like America’s founding principle of separation of church and state, laïcité discourages the commingling of religion and government, though the French take it a bit further (okay, a lot further). Today, even public displays of faith are frowned upon in France. The way France enforces this philosophy today has a lot to teach Americans about the value of the First Amendment and its guarantee of the free exercise of religion.
In 2004, France banned students from wearing or displaying overtly religious symbols in schools – including crucifixes, yarmulkes, and hijabs. Now, French education minister Gabriel Attal has announced that girls in state schools will no longer be permitted to wear abayas – long, robe-like garments favored by Muslim women that typically cover the body, but not the head and face, or feet and hands. Minister Attal said: “When you walk into a classroom, you shouldn’t be able to identify the pupils’ religion just by looking at them.”
Attal argues that wearing abayas in school violates laïcité, which was codified into French law in 1905. Abayas are not, strictly speaking, religious. It’s true that it is Muslim women who tend to wear the garments, but it’s certainly not a prescribed uniform. Long dresses have long been popular across cultures. How do you enforce a ban against fashion? (France’s previous education minister, Pap Ndiaye, declined to ban abayas, noting the risk of having to “publish endless catalogues to specify the length of dresses.”)
More to the point, even if abayas were overtly religious like a crucifix, yarmulke, or hijab – what is the danger in allowing students to express their religious identity?
In the United States, most see nothing wrong with such religious expressions. Whether it’s a headscarf or a yarmulke or a bolo tie knotted in the shape of a cross, our Constitution protects the free exercise of religion. Period.
But we’ve seen troubling signs in recent years of a desire among some of our fellow Americans to import the thinking behind laïcité – prohibiting people of faith from participating in public education at all. In Arizona, an elementary school district attempted to ban student-teachers from Arizona Christian University based solely on their religious affiliation. In Minnesota, the state legislature blocked religious schools from offering college credit courses to high schoolers. At Bremerton High School in Washington, the school board fired a football coach for daring to pray after games on the playing field.
The ACU students, at least, were eventually vindicated (Minnesota remains pending). As for the Bremerton case, no less an authority than the Supreme Court of the United States weighed in, making it clear. In Kennedy v. Bremerton, the Court declared:
“Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.”
The Court went on to underline that just because religious speech by teachers or coaches may occur within the confines of a government school, that does not necessarily make it “government speech subject to government control.” Writing for the Court, Justice Gorsuch added, “On this understanding, a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over her lunch in the cafeteria.”
What we continue to carve out in America – through constitutionally guided policy and sound jurisprudence – is a balance between respecting religion and prohibiting the state establishment or endorsement of one. The French government’s atavistic rejection of even a whiff of the religious takes institutional secularism to troubling and prejudicial extremes.
Attal, however, is unlikely to agree. “Secularism,” he said, “means the freedom to emancipate oneself through school.” The same freedom might be afforded to those who wish to emancipate themselves from censorship – and religious discrimination.
The Fourth Circuit Court of Appeals recently handed down a disappointing ruling in an important speech case, holding that a college professor who has been the target of escalating retaliation by his university for criticizing his department is not protected by the First Amendment.
North Carolina State’s Stephen Porter, a tenured professor on the NC State faculty since 2011, first got into trouble with higher-ups in 2016 when he objected to adding a question about “diversity” to student course evaluations. What followed was a mounting series of attempts by the university to rid themselves of Porter and to stifle dissent.
Porter was accused of “bullying” the person who had proposed adding the question. Later, in 2018, after Porter sent an email linking an Inside Higher Ed article that alleged an NC State faculty search was slanted to favor a minority applicant, Porter was told the administration would “find ways to exclude [Porter] from critical aspects of his job.” In 2019, Porter received another email that stated that students in the department were having strong reactions to his criticism of the Association of the Study of Higher Education (ASHE).
Finally, on July 5, 2019, Porter received notice that he was being removed from the Higher Education Program Area – a valued post – because the faculty could not make progress toward resolving issues with him there. After this incident and other punishments, Porter filed suit against NC State in 2021.
Porter’s case was first dismissed by the district court judge, who argued he had no legal grounds. Now, the Fourth Circuit has upheld the district court’s ruling, holding that Porter’s statements were not protected by the First Amendment because they were made in his capacity as an NC State employee, nor was his “bullying” protected because it was “an unprofessional attack on a colleague.”
Enter Judge Julius Richardson, the lone dissenter in this case.
In his dissent, Judge Richardson persuasively argues that Porter’s comments on the ASHE are protected by the First Amendment. Porter could have remained silent about the diversity question and about the drift of ASHE into ideological activism. Porter was not required to submit his opinion as part of his job, and, therefore, he was speaking as a citizen and is protected under the First Amendment.
Furthermore, Judge Richardson took issue with the majority’s assertion that because the school did not act against Porter for more than six months after the last of his controversial statements, he had not clearly established that his speech was the reason for the punitive actions taken against him. Judge Richardson argues that obviously NC State had for years been ratcheting up its threats against Porter because his statements frustrated the department’s activist objectives. It strains credulity to think that Porter’s criticism of the department wasn’t the motivating reason.
In the last instance, however, Judge Richardson noted that “bullying” does not push Porter’s speech outside of First Amendment protection. Even if that characterization were true, the First Amendment would be toothless if it didn’t cover offensive speech. (Porter did in one conversation use a four-letter word.) Contrast this treatment to Georgetown University’s acceptance of a professor who tweeted that sitting Supreme Court Justices should suffer miserable deaths and have their corpses castrated.
We commend Judge Richardson for his valiant stand in defense of the First Amendment. The issues at stake make this case ripe for SCOTUS review. If Porter’s case is left as-is, his situation would provide a dangerous roadmap for censorious administrators around the country on how to micromanage dissenting faculty until they either quit in frustration or can be fired. We look forward to further developments in this case.
The Foundation for Individual Rights and Expression is back in court again to remind the school system that they don’t have the power to curtail student speech outside of the classroom. The organization is representing a 17-year-old rising senior who was suspended by his Tennessee public high school for posting memes making fun of the principal’s dour personality.
In August of 2022, Tullahoma High School’s principal Jason Quick and assistant principal Derrick Crutchfield called the student, whose name is not mentioned, to their office and interrogated him about three memes he posted to Instagram off school grounds and outside school hours. As a consequence, Quick suspended the student based on a school policy prohibiting students from posting images on social media which “embarrass,” “discredit,” or “humiliate” another student or school staff.
As FIRE attorney Conor Fitzpatrick said, “The First Amendment bars public school employees from acting as a 24/7 board of censors.” He added that “as long as a student’s posts do not substantially disrupt school, what teens post on social media on their own time is between them and their parents, not the government.”
FIRE is representing the student in the hopes the courts will solidify their 2021 ruling in Mahanoy Area School District v. B.L. In that case, also filed by FIRE, the Supreme Court held that Pennsylvania’s Mahanoy Area High School violated former high school cheerleader Brandi Levy’s First Amendment rights by suspending her from the cheerleading team for voicing her frustrations with the school in a Snapchat post. In an 8-1 decision, the Court held that Levy’s comment, similarly posted while off-campus, was directed to her “private circle” of online friends. The Court affirmed that the incident did not constitute the “sort of ‘substantial disruption’ of a school activity or a threatened harm to the rights of others that might justify” disciplinary action.
By filing this suit, FIRE cements its hard-fought precedent by standing up for students’ First Amendment rights. The phrase used to be that students don’t have to “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” How far we’ve come that now we need lawsuits to remind schools that students don’t shed their First Amendment rights at home either. PT1 is very pleased to express our support for FIRE’s position in the litigation.
Information consumers no doubt face more “noise” in public channels than ever. A new article by Prof. Justin (Gus) Hurwitz suggests a novel, but misguided, approach to regulating speech – one that reflects a new spirit of hubris in many legal, academic, and political circles.
The article, dubbed “Noisy Speech Externalities,” presents something of a counterargument to Justice Holmes’ dissent in Abrams v. United States, which introduced the idea that more speech is the best answer to bad speech – what he called a “free trade in ideas.” In light of recent scholarship, free and unregulated speech seems to some to be too quaint for our times.
“Consumers of information face a glut of information that overwhelms their ability to process it all,” Hurwitz argues. Excessive “noise,” he suggests, harms the underlying goal of allowing unfettered speech because people become too confused to filter out the legitimate information.
Hurwitz has a solution to this “market failure” in speech. He wants to utilize an EPA-like pollution control framework that would require social networks to use “best available” content moderation technologies that would filter out speech that muddies the public discourse. Who decides whether some speech should be silenced as “pollution” or “noise” remains conspicuously unclear.
We should, it seems, just leave those questions to the “experts” and their “best available” algorithms.
Hurwitz draws on Claude Shannon’s “information theory,” which posits that a signal-to-noise ratio governs the extent to which a listener may distinguish good information from bad information. In other words, the more noise, the less discernible a signal. No question, this is the reality of social media today.
What Hurwitz fails to reckon with is the practical application of his theoretical framework. In arguing that excessive speech constitutes a market externality meriting a gag order, Hurwitz suggests that post-grad tech workers should be the arbiters of our civil discourse, with virtually no constraints on their power. This, he says, should be the contingent basis upon which Section 230’s liability shield is applied.
Speech theorists of this sort seem to lack a basic appreciation for the efficacy of speech over time. Surely, the revolutionary mobs who protested the Stamp Act were “noisy.” So, too, were civil rights demonstrators whose cacophonous outcries muddled the signal-to-noise ratio in the 1960s.
Passionate, inflamed speech may result in short-term discomfort; in the long run, it’s still the only way to build consensus for or against a starkly new proposition. Witness the shifting debate on the origins of covid, or the efficacy of masks and lockdowns. Applying outmoded “command-and-control” regulatory solutions is sure to repress valuable insights.
This paper has glimmers of the thinking of Marxist philosopher Herbert Marcuse. In his influential essay, Repressive Tolerance, Marcuse argued for the censorship of ideas and the repression of people who advocate positions that could stymie what to him was the clear Marxist direction of history. “Suppression of the regressive ones,” Marcuse wrote, “is a prerequisite for the strengthening of the progressive ones.”
Can one concoct a turn of phrase more thoroughly Orwellian than “repressive tolerance”? In a similar though less strident vein, Hurwitz suggests that social media organizations should make First Amendment policy decisions based on their own vague – and likely biased – interpretations of what constitutes a vibrant marketplace of ideas with an appropriate noise level.
There may well be a better answer on social media discourse and content moderation. The best answer of all is quality education. Better schooling is the missing piece needed to make consumers more discerning. The best information filters are the ones we carry in our heads.
Another university professor is in the news for showing a depiction of the Muslim Prophet Muhammad in a classroom. This is the second such incident involving a portrayal of the Prophet Muhammad to happen this academic year.
In the fall of 2022, Maziar Behrooz, as associate professor of history at San Francisco State University, was teaching a course on Islamic history when he showed his students a drawing of the prophet. Though artistic portrayals of the prophet are considered idolatry by many in the Muslim world, opinions differ. Behrooz, who was born in Iran, said that such drawings can be purchased in street markets in Tehran.
A Muslim student objected to the depiction to Behrooz outside of class. Behrooz told the student that as the professor he has the ultimate discretion to decide class content. According to some accounts, the professor showed the image again, which the student took as a taunt, prompting him to issue a complaint. When approached by the chair, Behrooz replied that the student's view is not uniform among all Muslims and that many do own and display depictions of the Prophet Muhammad. The SFSU office of Equity & Compliance informed Behrooz in March that he would face an investigation.
Despite appeals from some civil liberties organizations for SFSU to drop the investigation, California law may require the university to investigate the student’s complaint. As SFSU navigates this mine field, it should consider another recent academic drama centered around depictions of the prophet.
In fall 2022, Hamline University professor Erika López Prater was fired for showing a depiction of the Prophet Muhammad in her global art history class. The incident was elevated to a national controversy. In January, professor López Prater sued Hamline for religious discrimination and defamation, as well as for damaging her professional and personal reputation. Hamline has since walked back their comments against professor López Prater, and over one-half of full-time Hamline faculty voted to demand President Fayneese Miller resign. In early April, the president announced that she would retire.
The president of SFSU, Lynn Mahoney, has approached this case with greater care, issuing a statement that balances academic freedom with protecting students from harassment. As more cases like this occur, nuances could arise regarding the First Amendment – not only professors’ academic freedom, but also the religious liberty rights of students.
This is another sign that American universities are in the midst of a major recalibration prompted by an increasingly diverse student body. Such recalibration can never come, however, at the cost of free inquiry, nor can de facto blasphemy laws be enshrined within higher education. Perhaps California law should not mandate such investigations in the first place, but rather give academic leaders flexibility to look into complaints in ways that protect students and academic freedom.
Princetonians for Free Speech released a survey of Princeton University students that paints a harrowing portrait of student opinion regarding the first and most important item in the Bill of Rights.
When asked about their own speech, students reported:
Princeton is by no means alone. If polls of student opinion regarding free speech were taken at many other higher education institutions, we have no doubt that similar results would be seen.
Like many other universities, Princeton has struggled to defend speech in the age of cancellation. This survey falls on the heels of the firing of Joshua Katz, and comes after the enunciation of a free speech policy by Princeton University president Christopher Eisgruber.
Perhaps the Princeton community would do well to consider the words of one of its most famous alumni, a graduate from the days when the university was called the College of New Jersey.
James Madison, father of the First Amendment, wrote: “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
An op-ed penned by two Harvard professors announces the creation of an academic freedom council to actively protect free speech on that campus. In an op-ed in The Boston Globe, this document declares its purpose as boldly as if it had been nailed to a church door.
Celebrity author and psychologist Steven Pinker and Bertha Madras of Harvard begin their piece by detailing the sorry state of affairs in academia – viral videos of professors being mobbed, cursed, heckled into silence, and sometimes assaulted. They quote the Foundation for Individual Rights and Expression that of the 877 attempts to punish scholars across the United States for expression protected by the First Amendment, there were 114 incidents of censorship and 156 firings.
“More,” they note, “than during the McCarthy era.”
After detailing the value of open inquiry – apparently, remedial education for some in higher education – Pinker and Madras describe the corruption of ideas caused by censorship. Even when the academic consensus is almost undoubtedly correct, many will still distrust the truth because it “comes out of a clique that brooks no dissent.”
Pinker and Madras also describe the incentives that allow those intent on intimidation to take over a campus that once housed the first printing press in British North America.
“A cadre of activists may find meaning and purpose in their cause and be willing to stop at nothing to prosecute it, while a larger number may disagree but feel they have other things to do with their time than push back,” they write. “The activists command an expanding arsenal of asymmetric warfare, including the ability to disrupt events, the power to muster physical or electronic mobs on social media, and a willingness to smear their targets with crippling accusations of racism, sexism, or transphobia in a society that rightly abhors them.”
And don’t expect an “exploding bureaucracy for policing harassment and discrimination” to be helpful when their professional interests “are not necessarily aligned with the production and transmission of knowledge.” Things are made even worse, they write, when “right-wing muscle” attempts to offset “left-wing muscle” by passing laws to stipulate the content of higher education.
To correct this imbalance, Pinker and Madras announced the creation of a Council on Academic Freedom at Harvard.
“When an individual is threatened or slandered for a scholarly opinion, which can be emotionally devastating, we will lend our personal and professional support,” they write. “When activists are shouting into an administrator’s ear, we will speak calmly but vigorously into the other one, which will require them to take the reasoned rather than the easy way out.”
As of this writing, over one hundred Harvard faculty and staff have signed on to the council. With such leadership at one of the premier universities of the nation, we would not be surprised to see councils on academic freedom pop up on campuses around the country.
Sen. Tim Scott: “Freedom of Speech Isn’t Just a Nice Idea”
In recent years, religious organizations at public colleges and universities have had to struggle for the right to exist on campus. The Christian organization InterVarsity Christian Fellowship had to go to court against Wayne State University after having its status as an official student club revoked in 2017.
When federal Judge Robert H. Cleland ruled on this case in 2021, he wrote that other student groups were allowed to restrict their leadership based on sex, gender identity, political partisanship, ideology, creed, ethnicity, GPA or even attractiveness. However, the judge wrote, the “small group of Christians … were denied [student organization] benefits because they require their Christian leaders to be … Christian.”
Judge Cleland ruled in favor of InterVarsity Fellowship.
As many jurists have noted, freedom of association is essential to freedom of speech. An organization must have integrity in the sense of being whole in its beliefs. The Roman Catholic Church would no longer exist if it were forced to hire atheists as priests. The Freedom from Religion Foundation would crumble if forced to accept Roman Catholic priests into its leadership. Discrimination that would be illegal – and immoral – in a business is necessary for a religious, political, or ideological organization to exist and function.
Despite InterVarsity’s victory, many religious organizations – by no means only Christian in nature – have struggled to find acceptance as recognized clubs on campuses where virtually every other kind of organization is readily accepted. To protect religious rights and diversity, the Trump Administration issued a rule in November 2020 called the “Free Inquiry Rule” that protects the rights of religious student groups at public colleges and universities. Religious student organizations could no longer be defunded because they have leadership policies that conflict with campus anti-discrimination rules.
One Muslim leader, Ismail Royer, praised the Trump-era regulation to The Christian Post as an important policy for Muslim student organizations because it allows them “to select their own leaders and define their own mission by their faith’s principles.” He continued: “This right should be reserved for all student organizations, and not usurped by university officials based on their own shifting, unpredictable standards.”
Yet in August 2021, the Biden Administration announced that it was reviewing the Free Inquiry Rule. With the end of a comment period for this proposed rule change in late March, the administration is preparing to rescind existing protections.
Sens. Tim Scott (R-SC) and James Lankford (R-OK), along with Congressman Tim Walberg (R-MI), are responding by introducing a bill to head off a reversal of the Free Inquiry Rule. They introduced the Equal Campus Access Act of 2023 to protect religious student organizations from discrimination on campus.
“Too many public institutions of higher learning are silencing the voices of faith-based student groups, and I am proud to join my colleagues in standing up for the First Amendment," said Sen. Tim Scott. "Freedom of speech isn’t just a nice idea – it’s a core American ideal.”
“On America’s college campuses, freedom of expression is under attack,” said Sen. Lankford. “Colleges need to remain an open arena for debate, discussion – and most importantly – faith.”
“Over the past few years, we have seen a concerning increase of incidents on college campuses where free speech and free association of students has been restricted due to religious beliefs,” Rep. Walberg said. “Students should not have to give up their First Amendment rights of speech, religion, and association to attend a public college …”
Protect The 1st will closely monitor the administration’s rule change, its language and impact, and any legislative proposals offered in response to that change.
Disruptive Associate Dean Put “On Leave"
Stanford University Law School Dean Jennifer S. Martinez penned a 10-page letter that is a masterful defense of the spirit of the First Amendment in higher education. Along the way, she demonstrates that behavior has consequences. Dean Martinez announced that Associate Dean Tirien Steinbach, who orchestrated student hecklers’ abusive veto of the remarks of federal judge Kyle Duncan, is now “on leave.”
After that traumatic event, Dean Martinez arrived at the classroom where she teaches her constitutional law class. She found her whiteboard covered in fliers. One read: “We, the students in your constitutional law class, are sorry for exercising our 1st Amendment rights.” Some on Twitter made snarky remarks that these law students don’t understand that the First Amendment only restrains the government. It does not cover an elite, private university. But the snarks are wrong.
In her letter, Dean Martinez responds that the First Amendment certainly does apply to the university. She cites California’s Leonard Law, a statute that prohibits private colleges from making or enforcing rules that would punish students for speech that would be protected under the First Amendment and California Constitution in a public university. The problem is, for the protestors who shut down the judge’s speech, the students in need of protection would be the members of the Stanford chapter of the Federalist Society who invited the judge to Stanford.
That legalistic approach is necessary. After all, Martinez writes, her students are in a law school. But the body of her piece is about the spirit of debate and open exchange that is the heart of a First Amendment society.
Martinez distinguishes between an indoor university classroom and an outdoor event, where under settled First Amendment law, boisterous demonstrations might be more acceptable. Students also have a right to silently uphold signs indoors. But they do not have a right to shout down speakers.
Central to Martinez’s letter is that “diversity, equity, and inclusion actually means that we must protect free expression of all views.” That principle, apparently shocking to some, includes protection of the conservative Federalist Society. Those who don’t understand this are turning their backs on “rights to freedom of association that civil rights lawyers fought hard in the twentieth century to secure.”
Martinez embraces the 1967 Kalven Report, popularly known as the University of Chicago principles. It declares: “The university is the home and sponsor of critics; it is not itself the critic.”
Having set the logical premise of her argument, Martinez turns to a powerful peroration, likening the DEI ethos prevalent in today’s campuses to a call for academic and philosophical freedom.
“We support diversity, equity, and inclusion when we encourage people in our community to reconsider their own assumptions and potential biases. We support diversity, equity, and inclusion when we encourage students to connect with and see each other as people.”
She adds that “some students might feel that some points should not be up for argument and therefore that they should not bear the responsibility of arguing them (or even hearing arguments about them), but however appealing that position might be in some other context, it is incompatible with the training that must be delivered in a law school. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don’t agree with and respond as attorneys.”
She concludes by announcing that the law school will be holding a mandatory half-day session in spring quarter for all students on the topic of freedom of speech and the norms of the legal profession.
No doubt, such training is necessary. For those of a certain age who remember reading Milton’s Areopagitica in high school, it is worrisome that an elite law school must conduct remedial training on the value of open debate and free speech. Dean Martinez’s letter shows many in academia are willing to take strong moves to reignite devotion to the First Amendment.
We let some time pass for all the details to come in about the auto-da-fé that students and staff inflicted on Judge Stuart Kyle Duncan of the 5th Circuit Court of Appeals. Let us review these details and then suggest some next steps for Stanford.
Multiple sources and video confirm the judge was shouted down, berated, and abused during a lecture he had been invited to give to the Federalist Society chapter at Stanford Law on “The Fifth Circuit in Conversation with the Supreme Court: Covid, Guns, and Twitter.”
In the leadup to Judge Duncan’s talk, students at Stanford Law put up flyers that not only targeted Judge Duncan, but also students in the Federalist Society, posting their pictures and saying they “should be ashamed.” Over 70 students also emailed the FedSoc chapter asking it to cancel the event or move it to Zoom, arguing that Duncan has “proudly threatened healthcare and basic rights for marginalized communities.”
On the day of the event, around 100 protesters picketed outside the event, booing attendees, and calling out individual classmates. Protesters came into the room, holding signs with political slogans and shouting over any attempt by Judge Duncan to speak. For about ten minutes, Judge Duncan tried to give his planned remarks, but the protestors simply yelled over him.
Tirien Steinbach, Stanford Law’s Associate Dean for Diversity, Equity, and Inclusion, and the University's student-relations representative, initially allowed protestors to continue to disrupt the event. She failed to enforce the school's policy against disrupting speakers, despite assurances given to this speaker that he would be protected.
Finally, Dean Steinbach stood up to control the crowd, but only after taking time to criticize Judge Duncan, saying that he “has caused harm.” Rather than telling disruptive students to respect the speech of a sitting federal judge and ask challenging questions later, Steinbach stated that “this event is tearing at the fabric of this community that I care about and am here to support.”
Steinbach repeatedly asks: “Is the juice worth the squeeze?” She clarified “is it worth the pain that this causes and the division that this causes?” Apparently free expression is only worth defending if a diversity administrator finds it not divisive (a standard as old as the trial of Socrates).
Steinbach finally encourages the students to allow Judge Duncan to speak, but without any serious reprimand to the protesters who violated school disruption policies, who lobbed verbal abuse at fellow students and the judge, and who held the most power in this situation. Thus, she validated their tactics and set a terrible precedent.
Although Judge Duncan was eventually allowed to speak, he never gave his prepared remarks as the audience moved directly to Q&A. The questions were predictably unbecoming of law students at one of the nation’s top schools. One heckler hurled lewd insults, and Judge Duncan had to be escorted out by federal marshals.
After the event, Stanford President Marc Tessier-Lavigne and Stanford law school dean Jenny Martinez issued a joint statement apologizing to Judge Duncan. Citing Dean Steinbach’s speech, the statement said that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
This incident was beyond unacceptable. You don’t have to agree with the judge’s views on jurisprudence or gender to worry about where such behavior is heading. While Protect The 1st is pleased by Stanford’s statement, it is only a baby step in the right direction. Stanford must commit itself to restoring freedom of speech, academic freedom, and respect for diversity of thought.
Stanford can begin by inviting Judge Duncan back to speak. Such a gesture would send a strong message that Stanford is truly interested in what a sitting federal Judge has to say. In January, Yale Law did much the same when it reinvited Kristen Waggoner, CEO, President, and General Counsel of the Alliance Defending Freedom, to speak after undergoing a similar struggle session. That protest caused a firestorm, with some judges announcing they would not consider Yale Law graduates for clerkships.
Stanford could also take a hard look at the culture of censorship and surveillance that it, like many schools around the country, has built in the last few years. Last month, Protect The 1st reported on Stanford’s bias reporting system, which is used to anonymously report on students or faculty who commit wrongthink. Scores of Stanford faculty have called on the university to investigate free speech and academic freedom on campus, and to abolish the anonymous reporting system. What happened to Judge Duncan is just one flare-up of the chronic problem of intolerance, fear, and repression present on some college campuses.
And if Dean Steinbach and students do this to another speaker, Stanford must defend its reputation by firing Dean Steinbach and suspending or expelling students.
A federal district judge in Oregon late Thursday dismissed a lawsuit filed by a group of students who have soured on the religious colleges they attend (or have attended), seeking to overturn the religious exemption that Congress included in federal law to protect the right of religious colleges and universities to adhere to the tenets of their faith.
Title IX of the Education Amendments of 1972 prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. Congress, however, included a narrow exception to Title IX when an educational institution “is controlled by a religious organization” holding “religious tenets.”
Forty people who applied to, attended, or currently attend religious colleges and universities filed suit against the U.S. Department of Education, alleging that religious schools discriminate against them on the basis of their sexual orientation or gender identity. The plaintiffs alleged that the “religious exemption to Title IX exerts a chilling effect” on their free exercise of religion, speech, assembly, and association.
District Judge Ann Aiken noted that the Supreme Court has upheld the obvious principle that churches “advance religion, which is their very purpose.” Nor did Judge Aiken buy the plaintiffs’ argument that the religious exemption somehow violates the Religious Freedom Restoration Act (RFRA). The judge noted, “the text is clear that government granting exemptions does not constitute a violation …”
In short, Judge Aiken ruled “the balance of equities” fails to tip in the favor of the plaintiffs.
“This ruling is a big win for the rights of religious universities and colleges,” said Gene Schaerr, general counsel of Protect The 1st. “It upholds the First Amendment rights of these schools to advocate the tenets of their faiths, and to freely associate on that basis.”
On December 21st, the faculty senate of the Massachusetts Institute of Technology voted to approve a “Free Expression Statement,” defending speech and expression at the university. The statement asserts that “learning from a diversity of viewpoints, and from the deliberation, debate, and dissent that accompany them, are essential ingredients of academic excellence.”
The Free Expression Statement was approved by a vote of 98 to 52, a sizable margin showing that respect for free expression is alive and well at MIT. Not only does the statement enshrine respect for free speech, viewpoint diversity, and debate as cornerstones of academic integrity, but so too does it defend the right to speech that may hurt or offend. “We cannot prohibit speech that some experience as offensive or injurious,” the statement reads.
The Free Expression Statement is the culmination of a year’s work by MIT’s Ad Hoc Working Group on Free Expression, and was incited by last year’s invitation for, and subsequent cancellation of, a speech by geophysicist Dorian Abbot. Abbot was invited to present 2021’s annual John Carlson Lecture, which “communicates exciting new results in climate science to the general public.” Protestors led a successful campaign to disinvite Abbot because of his critical views on the university’s Diversity, Equity, and Inclusion initiatives.
That the Free Expression Statement was adopted by the faculty senate goes a long way towards rectifying the mistakes of last year, but it still has further to go. “[MIT] President Kornbluth can set a strong example by endorsing the free expression statement herself, as well as by considering and implementing the thoughtful recommendations of the free expression working group,” said Peter Bonilla, Executive Director for the MIT Free Speech Alliance.
PT1 strongly supports the passage of the Free Expression Statement by the faculty senate at MIT. We look forward to further efforts to preserve and protect free speech at MIT and at universities across the country.
The Alliance Defending Freedom scored a win in federal court recently when it represented a Christian student organization that says it was the target of viewpoint discrimination at the University of Nebraska-Lincoln (UNL).
Ratio Christi — Latin for “the reason of Christ” — is a multinational organization that “equips university students and faculty to give historical, philosophical, and scientific reasons for following Jesus Christ.” In 2021, the UNL chapter requested $1,500 in student activity funding to host Notre Dame Professor Robert Audi. Professor Audi, who previously taught at UNL for nearly thirty years, was slated to give a speech on whether it is rational to believe in God. The University rejected the request, stating that funding could not be provided for “speakers of a political and ideological nature."
The University also stated that Ratio Christi must invite a speaker to represent the opposite views of Audi to obtain the funding. In their suit, the ADF called this “viewpoint discriminatory on its face.” The policy set forward by the university “gives University officials unbridled discretion to engage in viewpoint discrimination by failing to set out narrow, objective, and definite standards for the disbursement of student fees for extracurricular speech.”
Thankfully, a federal court recently ruled in favor of the ADF and Ratio Christi. On December 15th, the ADF announced that the university accepted the court’s judgment and agreed to pay Ratio Christi $1,500. Additionally, the university also changed its student organization funding policy “to promote the availability of diverse viewpoints to UNL students […]”
Protect The 1st congratulates the Alliance Defending Freedom and Ratio Christi on their hard-fought legal victory. We also commend the University of Nebraska-Lincoln for accepting the Court’s judgment with magnanimity, and for taking necessary steps to ensure academic freedom and viewpoint diversity are upheld.
The U.S. District Court for the Northern District of Florida recently halted the enforcement of several higher education-related provisions of that state’s “Stop WOKE Act.” This action by a federal judge highlights the pitfalls of trying to extend Florida’s popular movement to define teaching about race and gender for elementary and secondary public schools to higher education.
In September, the Foundation for Individual Rights and Expression (FIRE) filed a suit challenging the constitutionality of the law’s higher-education restrictions. The Stop WOKE Act expands Florida’s anti-discrimination laws to prohibit schools and companies from promoting ideas of race- or sex-based guilt to students and employees. A person should not be made to “feel guilt, anguish, or any other form of psychological distress” due to their race, color, sex, or national origin. The law includes higher education instruction, a provision that led to a proposal to link tenure to a professor’s adherence to this law.
Like many laws restricting speech, the Stop WOKE Act sounds commendable, but the provisions at issue here would have the practical effect of making professors worry about their job security and tenure if they even touched on issues of race or gender in class. Chief U.S. District Judge Mark Walker, appointed by President Obama, called the law “positively dystopian.”
The law, Judge Walker wrote, “officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints.” Judge Walker even colored his 138-page order with a vivid passage from George Orwell’s 1984 to make his point. The legal basis for the order rests on long-established judicial principles that academic freedom and the First Amendment go together.
“[T]he First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” Judge Walker wrote.
While Protect The 1st believes Florida had every right to regulate curricula of early grades in public schools in response to parental guidance, the law goes too far in trying to pass academia-wide restrictions, particularly in private, non-state schools. Public school teachers act on behalf of the state, and there are only so many hours in the school day. The state has a right to prioritize what it believes are the most important, elemental lessons that students should learn.
But professors are not government spokespeople in the sense that public elementary school teachers are. Blanket restrictions on lessons and content, especially at the university level, strike at the very heart of academic freedom. Restrictions that could also chill the speech of professors at private universities or those with tenure expands the possibilities for future state intervention and widens the latitude for unconstitutional legislation.
If you believe there’s a problem with ideological conformity, cancel culture, or “wokeism” in higher education, this approach is not the way to address those concerns. If anything, suppressing speech would create martyrs and only make their speech more popular. If you believe that higher education has become an echo chamber, agitate for more diversity in backgrounds, perspectives, and ideas, but not a gag order.
More Students Support Violence Against Offensive Speakers
A new poll of undergraduate students reveals they lack a basic understanding of the First Amendment’s guarantees and are growing in acceptance of the heckler’s veto and even violence against speakers on campus.
These are the results of the William F. Buckley, Jr., Program’s eighth annual survey measuring the opinions of college students at four-year colleges and universities. One might wonder if a survey commissioned by a group named for the famous conservative author of God and Man at Yale might have a built-in bias of its own. But the survey, conducted by McLaughlin & Associates of 803 undergraduates nationwide, shows a clear deterioration in basic understanding of the principles of free speech that matches growing reports of intolerance for speech on campus over the last year.
The deterioration of speech principles in higher education begins as a failure in American secondary education. Students are not in disagreement with the American tradition of free speech and the Constitutional order as much as they seem to lack a basic understanding of what that tradition is.
As always, such discussions center around the most offensive speech imaginable, but the practical effect is to demonize anyone we disagree with as being the moral equivalent of a Nazi or Satan. Limiting speech on campus can come from conservatives as well as from liberals.
Students need to understand that – except for explicit calls to violence – hate speech, as contemptible as it is, is allowed in America. This is based on a mature understanding that once we outlaw one kind of speech, rhetorical contortions will be made to define any opposing argument as somehow being hateful and thus worthy of repression. Students are also not taught that outlawing hate speech does not eradicate it: rather, it drives such speech underground and glamorizes it. Repression endows hate speech with a glimmering allure for immature and unhealthy minds.
The Ninth Circuit Court of Appeals recently ordered the San Jose Unified School District to reinstate the Fellowship of Christian Athletes (FCA) as a recognized student club. A tartly written concurrence by one judge vividly portrays a hostile culture of secularism that may be behind some recent overreaching official efforts to isolate students from religious observance.
The issue at hand was that FCA leaders are required to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. Judge Kenneth K. Lee, one of two out of three judges on the panel that decided in favor of the FCA, wrote a stinging concurrence. He vividly portrays “a stench of animus against the students’ religious beliefs” that pervades San Jose’s Pioneer High School campus.
Judge Lee describes one Pioneer high school teacher, Peter Glasser, who “channeled his inner Martin Luther, pinning the [FCA’s] Statement of Faith and Sexual Purity Statement to his classroom whiteboard along with his grievances. But instead of a reformation, Glasser demanded an inquisition. As he explained in emails sent to Principal Espiritu, FCA’s ‘bs’ views ‘have no validity’ and amount to heresy because they violated ‘my truth.’ Glasser believed ‘attacking these views is the only way to make a better campus’ and proclaimed he would not be an ‘enabler for this kind of ‘religious freedom’ anymore.”
Judge Lee then turned to the behavior of another school official.
“Michelle Bowman,” Judge Lee writes, “also serves on the Climate Committee [a body that pushed to de-recognize the FCA] and as a faculty advisor to the Satanic Temple Club. In discussing this lawsuit with a former student, she opined that ‘evangelicals, like FCA, are charlatans and not in the least bit Christian,’ and choose darkness over knowledge and perpetuate ignorance.’ But it is not for Bowman to dictate what beliefs are genuinely Christian.”
Hit with this onslaught of attacks, the FCA was derecognized in two days without giving FCA students any opportunity to defend themselves or their organization. Judge Lee goes on to describe the efforts by Glasser and others to further accuse the expelled group of creating a hostile work environment for students and faculty because of their beliefs.
“In other words,” Judge Lee wrote, “teenagers – meeting privately to discuss the Bible – were creating a hostile work environment for adult faculty, according to Glasser.”
Judge Lee concludes: “In sum, animus against the FCA students’ religious-based views infected the School District’s decision to strip the FCA of its ASB status. And that violates the First Amendment’s protection of the free exercise of religion.”
Just as religion should not be taught in the classroom, it should also be free of harassment by educators and officials.
When a federal district court upholds the First Amendment rights of a person or organization, can it enforce those rights in the future? The answer by The Protect the First Foundation before the U.S. Court of Appeals for the 11th Circuit is a resounding “yes.”
The Hillsborough Area Regional Transit Authority (HART) of Tampa runs ads on its vehicles and bus shelters but prohibits ads that “promote a religious faith or religious organization.” When Young Israel of Tampa, an Orthodox synagogue, tried to place an ad for its “Chanukah on Ice” event, HART rejected those ads under its no-religion policy.
A district court came down on the side of Young Israel on First Amendment grounds and issued a permanent order or injunction forbidding HART from “rejecting any advertisement on the ground that the advertisement primarily promotes a religious faith or religious organization.” HART appealed, arguing that the district court’s injunction was an abuse of its powers and that HART’s advertising policy was constitutional.
The PT1st Foundation counter, filed Wednesday evening, demonstrates:
“First Amendment rights are fundamental rights essential to every other form of freedom. As a result, First Amendment rights warrant special protection. Because courts cannot enjoin conduct and do not ‘strike down’ unconstitutional laws, a court cannot adequately protect First Amendment interests without including prohibitions against future illegal conduct in its injunction.
“Without such preventative relief, governments would be free to repeat the same constitutional violation in the future. Any resolution of this case that fails to prevent future harm does not adequately vindicate the First Amendment.”
PT1st believes remedies to violations of the First Amendment should be as enduring as our right to free speech.
When Protect The 1st reports on crackdowns on campus speech, the stifling of First Amendment rights is usually the handiwork of either a combination of ideological zealots and cowardly administrators, or overweening state politicians. But in today’s global environment, the threat of retaliation for speech can also come from oppressive foreign governments operating on campus.
This is a rising concern with U.S. universities that financially benefit from the influx of students from the People’s Republic of China. In 2019-2020, 372,000 students from China studied in the United States. In 2020-2021, that number declined to 317,000. Given that Chinese students inject $15 billion into bursars’ coffers, even that modest drop in Chinese enrollment – due to Covid, geopolitics, and the rising allure of European and Australian universities – is concerning American academic leaders who’ve come to depend on this revenue stream.
Another concern, however, should be the price of freedom in the American academy that comes with the Chinese Student and Scholars Association (CSSA), a collegiate organization on 150 campuses across the United States. National Review’s Isaac Schorr reports how Kinen Kao, a Cornell University student, put up posters for a discussion about China’s treatment of Hong Kong, Uyghurs, and Tibet. Under the vigilant eye of CSSA, Kao’s materials were routinely vandalized and removed.
When Kao was physically assaulted by members of the Chinese student community, he pulled out his smartphone to record them – only to be pushed to the ground and have to fight to keep his phone from being snatched away. Such intimidation, as concerning as it is, is mild compared to reports of Chinese students having their families threatened with imprisonment or death after posting tweets or making on-campus statements critical of the regime.
A similar problem occurred on American campuses after the now largely defunct Confucius Institutes were identified by the U.S. State Department as “foreign missions” with “skewed” takes on issues that comport with the ideology of the Chinese Communist Party. Schorr reports: “CSSA’s stated purpose is similarly cultural. A key difference, however, is that their marks are not unwitting Americans but Chinese students studying in the U.S. Propaganda remains the means, but the retention of Chinese nationals, rather than the recruitment of Americans, is the end.”
Of the 118 Confucius Institutes in the United States, 108 are closed or are being closed after being identified as centers of propaganda. American universities might similarly decide that there is no place on campus for state-sponsored ideological enforcers.