A group of pro-Palestine student activists recently hijacked a private dinner at the home of Erwin Chemerinsky, dean of Berkeley Law School, disrupting one of several such events intended to honor the graduating class of 2024. It’s a lesson in decorum, which these students clearly lack. More importantly, it’s a lesson that Chemerinsky himself might cover in one of his constitutional law classes or legal tomes: You have no First Amendment right to public speech on private property.
Chemerinsky himself summarized the disruption in a written statement: “On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.” Alarmingly, the incident followed the publication and display of a poster calling for a boycott of the dinner events, with accompanying cartoon imagery depicting the dean holding a knife and fork covered with blood. The caption read: “No dinner with Zionist Chem while Gaza starves.” The link between Chemerinsky and Israel’s military campaign in Gaza is nebulous, to say the least. Chemerinsky is an American constitutional scholar, not an Israeli war planner. The only inference to be made is that the dean was targeted solely due to his Jewish heritage. For their part, the protestors (seen here in a video of the incident) asserted a First Amendment right to their interruption. To parse the legitimacy of such claims, we might turn to an actual First Amendment scholar, Eugene Volokh, who wrote about the dinner in a recent The Volokh Conspiracy post. He wrote: “Some people have argued that the party was a public law school function, and thus not just a private event. I’m not sure that’s right – but I don’t think it matters. “Even if Berkeley Law School put on a party for its students in a law school classroom, students still couldn’t try to hijack that for their own political orations. Rather, much government property is a ‘nonpublic forum’ – a place where some members of the public are invited, but which is ‘… not by tradition or designation a forum for public communication.’ (Minnesota Voters Alliance v. Mansky (2018) ...” Outside of the protestors’ erroneous legal argument, one might also consider the efficacy of their outburst. Above the Law founder David Lat contrasted the Berkeley protestors’ behavior with that of protestors at the University of Virginia, who recently turned out against a speech by Justice Jay Mitchell of the Alabama Supreme Court (author of the infamous IVF case). There, the protestors “didn’t heckle or harass Justice Mitchell, me, or anyone else who went into his talk. They stood outside the room, quietly holding signs. And once his talk got underway, they left to attend a counter-event …” How refreshing. Inasmuch as the protestors got it wrong here, Berkeley (for once) got it right. In a statement to Law 360, UC Berkeley Chancellor Carol T. Christ said: “I am appalled and deeply disturbed by what occurred at Dean Chemerinsky's home last night. I have been in touch with him to offer my support and sympathy. While our support for free speech is unwavering, we cannot condone using a social occasion at a person's private residence as a platform for protest.” UC Board of Regents Chair Rich Leib, meanwhile, said: “The individuals that targeted this event did so simply because it was hosted by a dean who is Jewish. These actions were antisemitic, threatening, and do not reflect the values of this university.” Berkeley’s reputation as the home of the Free Speech Movement (the name became somewhat Orwellian), continues a decidedly spotty record in recent years. The university’s unequivocal embrace of actual, settled First Amendment doctrine in this instance represents an encouraging development. Naturally, the protestors have since hoisted the banner of victimhood, claiming “pain, humiliation, trauma, and fear” following the incident. With time, we hope they learn the lesson that, in the words of Ronald K.L. Collins in a FIRE blog: “the First Amendment is a shield against government suppression. It is not an ax to swing at compassionate and freedom-loving people in their own homes.” Law schools might further promote First Amendment education by turning to disciplinary action for law students who refuse to learn the nuances of this central principle of American life. The U.S. Supreme Court recently set aside a Fourth Circuit decision in Speech First v. Sands, declining to wade into a snowballing collection of campus speech controversies. Washington Post columnist George Will called this a “passive dereliction of duty.” We wouldn’t go that far. Given the ongoing circuit split regarding campus speech policies, the Court will have to address the issue eventually. They may just need a better avenue – or moment – for doing so.
This case concerns Virginia Tech, which created a “Bias Intervention and Response Team” policy that encourages students to anonymously report to school officials any perceived expressions of bias amongst their cohorts, after which the accused may be referred for discipline. Virginia Tech defined “bias incidents” as “expressions against a person or group” based on “age, color, disability, gender, gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” In 2021, advocacy group Speech First sued Virginia Tech on behalf of several students, arguing that the policy unconstitutionally chills speech by creating “a literal speech police” and forcing students to self-censor. The Fourth Circuit ruled for the university in May, siding with the Seventh Circuit (which ruled similarly in another case) and against the Fifth, Sixth, and Eleventh Circuits (which found that campus policies chilling speech constitute sufficient harm to support standing). Speech First estimates that more than 450 colleges have bureaucratic thought police operations similar to Virginia Tech’s – though, likely expecting a negative result in the Supreme Court, Virginia Tech recently modified its policy, leading to the March 4 holding, rendering the controversy moot. Still, Justices Thomas and Alito didn’t hold back in their dissenting opinion urging a resolution in the circuit split. Thomas writes: “This petition presents a high-stakes issue for our Nation’s system of higher education. Until we resolve it, there will be a patchwork of First Amendment rights on college campuses: Students in part of the country may pursue challenges to their universities’ policies, while students in other parts have no recourse and are potentially pressured to avoid controversial speech to escape their universities’ scrutiny and condemnation. We should grant certiorari to resolve this issue.” Until the Court acts, colleges and universities in much of the country will be free to pursue Orwellian surveillance operations against students who fail to embrace predominating dogmas. When another case ripens, the Supreme Court should step in. Earlier this year, the student senate at Columbia Law voted to deny official recognition to Law Students Against Antisemitism, a student group seeking to “raise awareness and educate about both historical and contemporary antisemitism.” Nine other organizations requested official recognition this year, with LSAA being the only group to be denied so far. The reason? According to FIRE, “the rejection appeared to rest on objections to LSAA’s definition of antisemitism, which some pro-Palestine students opposed.”
Although the student senate quickly reversed course, the American Bar Association took it as an opportunity to formalize speech protections. This month, the ABA House of Delegates passed a resolution to adopt Standard 208, a new rule requiring law schools to “protect the rights of faculty, students and staff to communicate ideas that may be controversial or unpopular, including through robust debate, demonstrations or protests.” ABA accreditation requires adhering to Standard 208, or else law schools could be denied accreditation or have it revoked for failing to protect free speech. The importance of this rule should not be missed. As the ABA Journal states, Standard 208 is “the first accreditation standard to address free speech for the entire community within law schools.” Protect The 1st Senior Legal Advisor Eugene Volokh said: “the standard is another tool in the toolbox of a dean who wants to protect free speech and academic freedom … The dean can tell student activists, ‘Look, do you want us to lose our accreditation?’” Nevertheless, Standard 208 is only a Band-Aid to the broader cultural decay for the respect of free speech and intellectual diversity in law schools. “I’ve had a lot of students complain to me that they are reluctant to speak out in class – not because they’re afraid of discipline, but because they’re afraid their classmates will ostracize them,” Volokh said. “But you can’t have a rule to stop that.” The past few years have seen no shortage of campus incidents that would certainly have gone against Standard 208 had it been in effect. Stanford Law students shouted down Judge Stuart Kyle Duncan of the Fifth Circuit Court of Appeals when he came to give a talk in March of last year. Similarly at Yale, Kristen Waggoner of the Alliance Defending Freedom was harassed by an ugly protest over a (irony alert) panel discussion about free speech. Law schools increasingly resemble the hostile and immature playgrounds that undergraduate institutions have become. While Standard 208 will help, we have a long way to go before free speech will be fully restored. The Foundation for Individual Rights and Expression, in collaboration with the Academic Freedom Alliance and the Heterodox Academy, has penned an open letter urging the trustees and regents of American universities to “put neutrality above politicized institutional statements that threaten open debate on college campuses.”
The letter is specifically addressed to the trustees of universities, who wield considerable power to set institutional policy. “It is time for those entrusted with ultimate oversight authority for your institutions to restore truth-seeking as the primary mission of higher education by adopting a policy of institutional neutrality on social and political issues that do not concern core academic matters or institutional operations,” the letter says. “In recent years, colleges and universities have increasingly weighed in on social and political issues. This has led our institutions of higher education to become politicized and has created an untenable situation whereby they are expected to weigh in on all social and political issues." The letter specifically calls on every university to adopt an institutional neutrality policy, much like that espoused by the Kalven Report of the University of Chicago authored in 1967. The letter quotes that report, noting that institutional neutrality is necessary “to pursue truth through ‘the discovery, improvement, and dissemination of knowledge.’ And to accomplish this mission, ‘a university must sustain an extraordinary environment of freedom of inquiry and maintain an independence from political fashions, passions, and pressures.’” Greg Lukianoff, President and CEO of FIRE, said that “a top-down, father-knows-best mentality is absolutely no way to support the next generation of free thinkers. Students and faculty deserve the freedom to experiment with different perspectives and explore entirely new ways of thinking without the college claiming to have done all the thinking for them.” The open letter follows on the heels of FIRE’s annual college free speech index, in which not a single university received a score higher than 79 out of 100. If this were a college class, that would be a C+ ranking. Many of America’s most prestigious institutions receive abysmal rankings. Harvard received a score of zero, which was rounded up because the index couldn’t accommodate negative numbers. Protect The 1st applauds FIRE’s open letter to university trustees and regents. The state of free inquiry in American universities is dire. We need bold leadership to right the course. We look forward to further developments in this story. Jewish students at Harvard are suing the university for failing to address rampant antisemitism on campus. Their case, Kestenbaum v. Harvard, raises sharp questions about free speech and the responsibilities of a private university. Harvard is not required by law to observe the principles of the First Amendment the way a state-sponsored school would. But Harvard must live up to its self-proclaimed commitment to open discourse.
The plaintiffs, Students Against Antisemitism, contend that “since October 7, 2023, when Hamas terrorists invaded Israel and slaughtered, tortured, raped, burned, and mutilated 1,200 people – including infants, children, and the elderly – antisemitism at Harvard has been particularly severe and pervasive.” One of the central claims of the case is that “Harvard selectively enforces its policies to avoid protecting Jewish students from harassment, hires professors who support anti-Jewish violence and spread antisemitic propaganda, and ignores Jewish students’ pleas for protection.” This, combined with the university's reluctance to discipline students engaging in antisemitic behavior, paints a disturbing picture. The lawsuit points out a stark contrast: while Harvard mandates training classes to address various forms of discrimination – including “sizeism,” fatphobia, racism, and transphobia – it seems lackadaisical about antisemitic incidents. This was memorably captured by former Harvard President Claudine Gay who suggested “that calls for the genocide of the Jewish people do not necessarily violate Harvard’s policies.” Furthermore, the case highlights instances where Harvard faculty members have not only condoned but actively participated in rallies characterized as antisemitic. The suit claims the university's response to a student mob taking over a campus building for antisemitic purposes was not disciplinary action but the provision of burritos and candy. The suit alleges that while the university aggressively enforces policies against bias towards other minority groups, it turns a blind eye to antisemitic incidents. The plaintiffs propose disciplinary measures, including the termination of faculty and administrators involved in antisemitic discrimination, as well as suspension or expulsion for students engaged in such conduct. It also calls for antisemitism training for all members of the Harvard community and the rejection of donations implicitly or explicitly conditioned on the promotion of antisemitic views. We commend Students Against Antisemitism for their bold stance against Harvard’s obvious double standard, but some of the lawsuit’s remedies might deepen Harvard’s problematic relationship with free speech – a serious concern for the university with the lowest-ranked commitment to speech in the nation, according to the free-speech organization FIRE. This ranking could actually get worse with the further expansion of diversity, equity, and inclusion (DEI) programs. Under the DEI banner, expansive bureaucracies have already cast a pall over campus speech. We need less of this, not more. Consider how DEI was used at Harvard to defenestrate Carole Hooven, a distinguished author and longtime Harvard lecturer on evolutionary biology who committed the thought crime of asserting that there are two biological sexes. We need fewer such codes, not more, for speech to thrive again on campus. The critical distinction to be drawn is between harsh language and justifications for what constitutes a just war, and the celebration of outright hatred, violence, and heinous acts. As we previously wrote, “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,’ (as one Cornell professor did), they may be within the bounds of the First Amendment, but we have to ask if it’s just the speech that’s evil. At some point, for private entities in particular, the heinous uses some make of free speech rights raise serious questions regarding the freedom of association (or disassociation) choices of the institutions themselves. Educational institutions cannot always hide behind the laissez faire ethos of free speech when choosing the administrators and the professors that represent them, or even the students who form part of the community the university actively creates. Public institutions, like all of society, are challenged to adapt principles spelled out by the U.S. Supreme Court in its 1968 Brandenburg v. Ohio opinion, which gave maximum berth to speech – even hate speech. How do the principles of this ruling apply given the new technological reach of speech and the ability to use social media to incite others to violence in the form of swatting, anthrax, bombs, or doxing? How do we apply that ruling’s maximum respect for speech in modern circumstances so that if only a tiny percentage of followers is responsive to incitement, it still amounts to a high probability of violence? Or, as former U.S. Senator and current University of Florida President Ben Sasse told The Wall Street Journal, the U.S. Constitution “draws a deep, deep line at speech and action,” that “threats are the front edge of action,” and that “orchestrated plans, or getting to a definable way of targeting specific people, is when speech ceases to be deliberation.” The risk with such speech is unlawful violence, not just war or self-defense. On the other hand, universities must accept much controversial but benign speech today, even if it might “trigger” someone. For Harvard, better approaches to free inquiry are emerging from the Council on Academic Freedom, a faculty organization dedicated to expanding respect for speech on campus. For society at large, perhaps the principles of Brandenburg need to be updated for the digital age. In the meantime, when the murder-adjacent speak out and self-identify, they should suffer the social and career consequences. When the Big Walnut Local School Board of Education passed a resolution banning Pride and other “controversial” flags from school grounds, it did so against the objections of two board members and many parents and teachers, who voiced their opposition to the policy over two hours of public debate. Now, the ACLU of Ohio has weighed in, expressing “grave concerns with this policy, which is unconstitutional in multiple respects …”
Protect The 1st has always held that it’s the job of schools to educate children but the job of parents to instill personal values. We should always strike an appropriate balance between safeguarding the proper functioning of the classroom and overprotecting young people from any whiff of controversy. A blanket ban on "flags, banners, posters, electronic insignia and other items" that "promote activist causes, or [are] otherwise deemed controversial" falls short of any reasonable goal. It’s a vague, poorly articulated, viewpoint-based restriction unlikely to survive judicial scrutiny. There seems to be growing confusion over the First Amendment at the local level (particularly at the Big Walnut school board, which previously landed in hot water for shutting down parental dissent back in 2022). School boards regularly overstep their bounds in the context of debates about educational curricula. That’s to say nothing of recent municipal and county attempts to go after newspapers based on unfavorable reporting. The Big Walnut resolution is another example of attempting to direct the culture with laws and rules. The ACLU called it “vague to the point of incoherence.” That’s not far off. School boards and other government officials should be wary of exceeding constitutional strictures in their efforts to appease a vocal constituency, left or right – or themselves. We look forward to further developments in this story. That the performance of three Ivy League presidents before a congressional hearing last week was disastrous doesn’t need context – any version of academic freedom that tolerates a call for the genocide of Jews or any other group is well beyond any proper understanding of that concept. It would transform universities into arenas of fear.
This debacle continues to spark a long-needed reassessment of the correct balance in protecting speech on campus against the need to protect students with laws and court rulings that forbid “true threats.” Eugene Volokh, UCLA School of Law professor and Senior Legal Advisor to Protect The 1st, explores this territory in a thoughtful essay for The Los Angeles Times. He urges university presidents to do all they can to protect students from true threats without abandoning free speech standards. "Antisemitism on campus is a real problem, and in this fraught moment, many Jewish students are understandably scared. But if freedom of expression is to survive on American campuses — and for our nation’s vitality, it must — Magill’s original answer was right. Context does matter. The categorical exceptions to the 1st Amendment are few, narrow and carefully defined by precedent. And while Penn is a private university not bound by the 1st Amendment, its policies commit the school to 1st Amendment standards." Volokh finds considerable context for utterances or writings that are interpreted as calls for genocide for some, and merely an explication of just-war theory by others. Between these two polarities, however, many thorny questions present themselves. For example, is the call for a “global intifada” a true threat or a political statement? What matters most: what the speaker means or how it is heard by others? Beyond the university, has the jurisprudence of true threats and incitement kept up with the internet age? Shouting “Kill the Jews” in an empty park is one thing. Promoting such a message with a vivid post that reaches millions of people – potentially inspiring the most unbalanced mind among them to take up a gun and attack a synagogue – is another. Protect The 1st looks forward to examining these questions and holding debates on “true threat” exceptions to speech throughout 2024. 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. 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. |
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