SPEECH ON CAMPUS: WITHHOLDING FUNDS ON FIRST AMENDMENT GROUNDS LIKELY VIOLATES THE FIRST AMENDMENT AS APPLIED BY INDIVIDUAL-1
Untitled, Watercolor, 21.5" x 29", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
"Today we’re delivering a clear message to the professors and power structures trying to suppress dissent and keep young Americans — and all Americans, not just young Americans . . . from challenging rigid, far-left ideology. If the university doesn't allow you to speak, we will not give them money — it's very simple." Individual-1.
Quoted below are portions of the March 21, 2019 Executive Order concerning speech on college campuses. The language in the Order appears neutral on its face, as compared with Individual-1’s ideological pronouncement of his objective for executing the Order. If he had anything to say about it, his administration would never base its enforcement on the neutral application of First Amendment principles, but instead on whether enough students and faculty or their guests speak in his favor and against his detractors. If colleges act or react out of fear of losing funding in light of Individual-1’s ideological bent, which is Individual-1’s stated intent, government actors may make decisions that are not neutral under the Constitution, thereby engaging in content or viewpoint discrimination in violation of the First Amendment.
Moreover, the Order is otherwise replete with redundancies, meaning it is unnecessary: it simply requires colleges and universities to comply with existing law. Hence, the only purpose for the Order is to skew expression in favor of Individual-1 and against his detractors which, as applied, is unconstitutional. Government is not and should not be in the business of tipping those scales.
Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities Issued on: March 21, 2019
"Section 1. Purpose. . . . In particular, my Administration seeks to promote free and open debate on college and university campuses. Free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity. We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning. . . .
"Sec. 2. Policy. It is the policy of the Federal Government to:
"(a) encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions; . . .
"Sec. 3. Improving Free Inquiry on Campus.
"(a) To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.
"(b) “Covered agencies” for purposes of this section are the Departments of Defense, the Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, Energy, and Education; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration. . . .
"Sec. 6. General Provisions.
"(b) This order shall be implemented consistent with applicable law . . . ."
In response to the Order, a conservative lawmaker said: "I don’t want to see Congress or the president or the department of anything creating speech codes to define what you can say on campus. The U.S. Constitution guarantees free speech. Federal courts define and enforce it. The Department of Justice can weigh in. Conservatives don’t like it when judges try to write laws, and conservatives should not like it when legislators and agencies try to rewrite the Constitution.” Sen. Lamar Alexander (R-Tenn.), Chair of the Senate Health, Education, Labor and Pensions Committee. Indeed, the director of free speech initiatives at the conservative Charles Koch Institute said: “We are concerned that wrongly framing censorship as an ideological issue works against efforts to foster open intellectual environments on campus. The best policies are those that empower the academy to uphold its core ideals of academic independence and free inquiry."
The ACLU echoed this sentiment: “This executive order doesn’t do much with regard to free speech. Instead, it tells public universities to abide by the First Amendment, as they are already required to do, and private universities to abide by their existing policies." ACLU Senior Legislative Counsel Kate Ruane.
"Congress shall make no law . . . abridging the freedom of speech . . . ."
The Speech Clause encompasses wondrously simple ideas to assure and preserve self-governance in an ordered society: severe restrictions on government’s ability to interfere with or impair transparency, a free market and open exchange of ideas, assemblage, religious belief and practice. As with most constitutional provisions, those rights and the government’s restrictions on impairing those rights are not absolute and the United States Supreme Court often serves as the final arbiter on where the lines are drawn.
The few words that comprise the First Amendment have generated some of the most rigorous, divisive and consequential debates in American jurisprudence. Given Individual-1’s repeated conceptual massacres of and steadfast tyrannical attacks on these founding principles, I have commented on First Amendment Clauses including press, assembly, religion, and petitioning the government to help right wrongs and be heard on issues of concern. Some of what follows is from an earlier post. As a preface for what follows, if a public institution of higher learning that fosters academic freedom chooses to accommodate student organizations, it must remain neutral in providing those speakers the organizations invite (and their respective viewpoints) a safe but open forum. Crush the egg shells. Stop worrying about the tender sensibilities of students who are or may be offended by the subject matter or content of the speech. If they are not interested in hearing others’ points of view, extreme, obscene and/or detestable as they may be, they shouldn’t attend the event. If students are interested in not being offended and only in confirmation bias, they should go to a tech school or a university that is not within a public system.
WHETHER THE SPEECH OFFENDS IS NOT THE ISSUE. THE ISSUE IS WHETHER GOVERNMENT CAN (OR CAN BE USED TO) SUPPRESS OR CENSOR THE SPEECH
Nearly two years ago UC Berkeley became ground zero for First Amendment intolerance, despite that University’s storied history of peaceful activism, albeit left of center. Two groups invited Ann Coulter to speak at the University, the Young America’s Foundation and the University’s Young Republicans. The University canceled the speech based on a claim of “very specific intelligence” that Coulter might be in “grave danger.” The University was pressured into changing its position, offering to allow Coulter to speak at a time when fewer students would be around to hear her. The student groups threatened to sue claiming the time, place and manner restrictions on her speech violated fundamental constitutional principles.
The “intelligence” included threats by leftist activists, Antifa, who were threatening to block Coulter from speaking at the University, whatever it takes. In one of the most anti-First Amendment rants I have heard in recent times, one Berkeley graduate who organized By Any Means Necessary, a national group involved in previous demonstrations that turned violent, said: “Our basic thing is to send a loud and clear message that this is not acceptable on our campus. . . . We will not tolerate anti-immigrant bigotry or bigotry of any kind, which is the only thing she’s here to do.” Of course, this anti-First Amendment rant is protected speech, the same as flag burning or kneeling during the National Anthem, so long as it does not create an imminent threat of violence or incite people to certain illegal activity or does not constitute a true threat to others’ safety.
I will not get into the more complex discussion of what is known as a “forum analysis” in legal speak, except to say this. Berkeley is a State-owned and -operated institution of higher learning. The United States Constitution applies to State-owned entities. Presumably Berkeley exists for the primary purpose of education which comes only with the free exchange of ideas, opinions, points of view and rigorous debate. Presumably other Berkeley campus and student groups have invited and are free to invite speakers of interest to them. Presumably, with very few limitations, Berkeley has designated itself as an open public forum for expressive activity. Presumably, the University attempts to maintain a posture of content-neutrality, meaning it will not attempt to limit or restrict student-invited guest speakers based on what they have said elsewhere or might say on campus.
In response to reports about UC Berkeley’s cancellation of Coulter’s appearance for safety concerns, I posted a few thoughts about the national trend toward university students shrouding their willingness to learn in confirmation bias and political or other comfort zones. As more facts came out concerning the controversy surrounding the Coulter invitation, its cancellation and the University’s conditional un-cancellation, the discussion generated a number of very thoughtful responses. Many of the comments targeted Coulter, her hate speech and bigotry, and a general lack of any redeeming qualities worth considering.
I consider myself progressive. I deplore Coulter and the likes of her, what she says and what she stands for. I also deplore applied partisanship where the core principle at risk is fundamental to preserving our democratic form of self-governance. The Speech Clause falls into this category. When groups seeking to exercise their First Amendment rights—especially groups on the margins—encounter threats intended to destroy or otherwise silence their peaceful resistance, demonstrations or protests, the answer is not to cancel the event. For such an act of extreme censorship—which happens to be the very outcome those who oppose such speech are seeking—is tantamount to capitulating constitutional principles to terrorist threats. Terrorism wins. The Constitution loses. Rather, the answer is to assure the event goes forward by doing everything possible to keep the peace, an assurance less interested in the content of any particular expressive activity than in the preservation of expressive activity itself. Offensive speech is protected. Hate speech is protected. If the speech offends you, speak. The preeminent constitutional importance of this bedrock principle demands it as your right.
Even our newly sainted former Supreme Court Justice Scalia defended the First Amendment’s role in protecting unpopular speech (popular speech does not face government oppression):
“The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content.”
“The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”
The United States Supreme Court decided Snyder v. Phelps in 2010 in favor of Phelps who, along with his Westboro Baptist Church, protested at military funerals about the sinful tolerance of homosexuality in the United States, particularly in the military. Near the funeral for Matthew Snyder, slain in the Iraq war, Phelps and his ilk held signs declaring “God Hates Fags,” “Thank God for Dead Soldiers,” "God Hates the USA/Thank God for 9/11,” “Don’t Pray for the USA.” Albert Snyder, the slain soldier’s father, sued Phelps and was awarded more than $10 million by a jury for Phelps' outrageous, offensive speech near and during Matthew's memorial service. The judge later reduced the award to $5 million. The Fourth Circuit Court of Appeals reversed the decision holding that this clearly offensive speech was protected by the First Amendment.
The ACLU submitted an amicus (friend of the court) brief to the United States Supreme Court in favor of protecting speech, especially speech on the margins. The ACLU Executive Director Steve Shapiro told NPR:
“The First Amendment really was designed to protect a debate at the fringes. You don’t need the courts to protect speech that everybody agrees with, because that speech will be tolerated. You need a First Amendment to protect speech that people regard as intolerable or outrageous or offensive—because that is when the majority will wield its power to censor or suppress, and we have a First Amendment to prevent the government from doing that.”
The Supreme Court held that a jury’s finding of outrageousness could not overcome the special protection afforded the speech under the First Amendment. Seven justices concurred in the majority decision, authored by Chief Justice John Roberts. Chief Justice Roberts concluded that other facts that could have taken the picketing outside First Amendment protection were not present.
Justice Alito, the lone dissenter, said what many people believe:
"Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. . . . In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner."
If you find yourself in the Alito camp on this one (or if you don't), please head down to the nearest University where someone with whom you strongly disagree is scheduled to speak. Demonstrate, resist, protest, march, say wildly offensive things, but please do not incite violence.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father's work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father's art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers