Charles Koch Institute's Senior Fellow for Free Speech and Toleration Casey Mattox, who spoke on campus free speech at the RNLA's National Policy Conference in April, described how three First Amendment cases from the Supreme Court's October 2017 term would impact free speech on college and university campuses. First, on Minnesota Voters Alliance v. Mansky:
The Mansky decision means that universities must not only avoid viewpoint discrimination; they must affirmatively enact policies eliminating the discretion that could allow it. . . . In other types of government forums — for example, parade or rally permits on public streets or parks — the Supreme Court had previously required that the discretion of the decision makers must be “bridled” by fixed and objective criteria. A government’s failure to create these objective standards to limit the decision maker’s authority was itself unconstitutional because of the risk of viewpoint discrimination.
Some attorneys have argued that this "unbridled discretion" doctrine is limited only to traditional public forums (such as public parks and streets) and does not bind universities. Thus, it was permissible for administrators to make recognition, funding, or other decisions on vague or unspecified criteria, and the burden remained on students to show that they had been discriminated against because of their viewpoint. . . . But the decision in Mansky eliminates any doubt that the unbridled-discretion doctrine applies in any forum, including those commonly found on campus. Universities will now have to ensure that administrators or student governments making decisions about student expression are guided by fixed, neutral, and objective criteria — protecting students from hidden viewpoint discrimination.
Second, Mr. Mattox writes of the impact of Janus v. AFSCME:
Public universities require students to pay hundreds or thousands of dollars per semester in “student activity fees.” . . . In Southworth v. Board of Regents, University of Wisconsin System, the Supreme Court rejected a First Amendment compelled-speech challenge to these mandatory fees. . . . After Janus, Southworth may be in question. It is noteworthy that the Court’s 49-page opinion, surveying its prior precedent, omits any mention of the Southworth exception from the rule that government may not force people to fund others’ speech. The Court’s strong decision in Janus against compelled funding of others’ speech, and overturning the Abood decision on which Southworth largely rested, may lay the groundwork for a new challenge to Southworth. Even if Southworth itself isn’t threatened, universities should examine whether their student-organization funding systems are really like the one upheld in Southworth. To the extent that a university’s student-fee allocation program directs these mandatory fees toward specific groups or tiers of student-group funding in ways that advantage certain views, they may be at greater risk. And, as noted above, Mansky at least places the burden on universities to demonstrate that they have strictly limited discretion over student-activity-fee allocations to make it more difficult for viewpoint discrimination to happen.
And finally, on NIFLA v. Becerra:
Some professional schools and degree programs have sought to impose as speech codes the professional-ethics codes developed to apply to members of those professions. These codes are often written broadly (e.g., prohibiting “unprofessional behavior”) by voluntary professional associations and not meant to be strictly applied by government. Speech codes such as these are routinely deemed unconstitutional when drafted by universities and applied to all students. Some colleges and programs have argued that they may nevertheless enforce a professional-ethics code against students in that particular program — including its limits on “unprofessional” speech. The Court’s virtually complete rejection in NIFLA of new First Amendment exceptions, including one unique to “professional speech,” should make it more difficult for institutions to justify these professional-speech codes under the First Amendment.
The Roberts Court, particularly in the last term with the addition of Justice Gorsuch, has been a strong speech-protective Court. Judge Kavanaugh has a strong record on free speech cases and will likely continue this trend when he is confirmed to the Supreme Court. While the Court does not hear many campus free speech cases, mainly because universities' speech-suppressing policies are usually clearly unconstitutional and quickly dropped or invalidated once challenged, its First Amendment jurisprudence has many implications for free speech on campus.
Yesterday, a judge for the U.S. District Court for the Northern District of California granted in part and denied in part the defendants' motion to dismiss in the challenge to U.C. Berkeley's disparate treatment of conservative speakers:
U.S. District Judge Maxine Chesney found the plaintiffs adequately alleged that UC Berkeley used an overly broad events policy to charge excessive fees and impose other unreasonable restrictions on conservative speakers. . . .
Chesney rejected claims that university officials engaged in intentional “viewpoint discrimination,” finding the same security concerns were not an issue with more liberal speaking events compared to conservative speakers.
RNLA Vice President for Communications Harmeet Dhillon is counsel to the plaintiffs:
“We’re very pleased that our lawsuit against UC Berkeley officials in their individual and official capacities is moving forward,” said plaintiffs’ attorney Harmeet Dhillon. “We look forward to litigating these issues.” . . .
Plaintiffs’ attorney Dhillon called the case “an example of student groups fighting back” against universities across the country suppressing conservative speech, especially schools in California.
“It’s a core constitutional right being impeded by the government, so we will move forward and vindicate their core First Amendment speech rights in court,” Dhillon said.
Free speech on campus is an important current issue that will be discussed at our National Policy Conference tomorrow.
Professor Ron Rotunda, a stalwart leader of the conservative and Republican legal movements, has unexpectedly passed away. A consummate scholar, he was an expert on constitutional law, federalism, free speech, professional responsibility, legal history, and many other areas of law. His legal and political analysis was always insightful and witty, enabling non-lawyers and lawyers alike to easily understand complicated concepts and making him a sought-after commentator on many issues.
RNLA President Elliot Berke said: "When I was in law school, Ron became a legal giant to me as a Constitutional Law scholar. He had worked on Watergate with my Con Law professor so I then only knew him by reputation. Within a few years of graduating, I was fortunate to work with him in the Independent Counsel's office and to become his friend. He leaves behind a tremendous legacy in the law and will be greatly missed."
Here are some recent highlights from his prolific writing and speeches:
John Marshall and the Cases That United the States of America - published in January, this critically acclaimed book contains Prof. Rotunda's rewritten and condensed version of Beveridge's biography of John Marshall. It is a fascinating read for scholars of legal history and constitutional law.
"Facebook, Russian Interference and the Monsters on Maple Street" - Verdict, Dec. 18, 2017:
There is nothing new under the sun and there is nothing new about Russian interference. The Russians (and the Soviets before them) spread agitation-propaganda, or “agitprop,” a Russian blend of agitatsiya (agitation) and propaganda (propaganda). Its purpose is to sow discord, fan hatred. . . .
Non-democracies spread fake news to undermine democracy and manipulate people. . . . There is nothing unusual, or even new, in all of this. When we express surprise, we emulate French Captain Renault in Casablanca who said, “I am shocked—shocked—to find that gambling is going on in here!” (Right after that, an employee says to him, “Your winnings, sir.”)
What we know of Russian interference tells us much about Putin, the former KGB operative, and much about ourselves. Russia used Facebook and other social media in the year or so preceding the 2016 presidential election, and the period following, to sow discord and mayhem. The point is to amplify social divisions . . . by promoting opposite sides of the political spectrum . . . .
"Using the Licensing Power of the Administrative State: Model Rule 8.4(g)" - The Federalist Society's National Lawyers Convention, Nov. 18, 2017: Prof. Rotunda provided a chilling, yet amusing, analysis of free speech implications of the American Bar Association's new Model Rule of Professional Conduct 8.4(g).
"George Wallace at Harvard—The Good Old Days of Campus Free Speech" - Verdict, May 8, 2017:
Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that country’s first freely elected president since World War II was a playwright.
"An English Teacher Corrects Shakespeare" - Verdict, Apr. 10, 2017:
There is also the problem of free speech. People have a right to use ordinary English. Perhaps because we have passed 1984 unscathed, we often ignore the significance of George Orwell’s “Newspeak”. Words both reflect and mold the way that people think, which is why they are so powerful and why the First Amendment is so important. [Northern Arizona University's] Dr. [Anne] Scott is using her power of grading as a way to control how people talk. . . .
There are limits to the power of words, but there is also a magic in them: not the magic of “abracadabra,” but magic nonetheless. Words have the ability to confuse and to clarify, to help legitimate policies, to generate loyalty, to give the appearance of action, to mold people’s perceptions of the world, to affect the way they approach a problem, and to reflect their innermost thoughts. When people argue about “mere words,” they are talking about fundamentals, about infrastructure, not superstructure.
When Dr. Scott and Northern Arizona University force students to use certain words and shun others, they are tapping into this power—a power easy to abuse. That is why we have the First Amendment. The government should not punish people for using words that our dictionary blesses.
"The Electoral College Works Fine, Just as It Is" - Verdict, Dec. 5, 2016:
Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state.
The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats.
The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. . . .
The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”
"The ABA Decision to Control What Lawyers Say: Supporting 'Diversity' But Not Diversity of Thought" - The Heritage Foundation Legal Memorandum, Oct. 6, 2016:
These changes show that the ABA is very much concerned with what lawyers say and who teaches them. The only thing that does not concern the ABA is diversity of thought. The language that the ABA uses to promote its latest foray into political correctness makes this all too clear. Moreover, what the ABA does affects all of us, even if we are not lawyers, because of its governmental power. . . .
Even when a court does not enforce this rule by disbarring or otherwise disciplining the lawyer, the effect will still be to chill lawyers’ speech, because good lawyers do not want to face any nonfrivolous accusation that they are violating the rules. The ABA as well as state and local bar associations routinely issue ethics opinions advising lawyers what to do or avoid, and most lawyers follow this advice. . . .
Is it the best use of scarce bar resources to discipline lawyers who may violate a vague rule that prohibits speech because that speech violates the new Rule 8.4(g)? It is not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, who commingle trust funds, or who cheat third parties.
The purpose of the new Rule 8.4(g) is to promote a “cultural shift” in the United States. Until now, that was not within the job description of the ABA or of the Rules Governing Professional Conduct.
Rest in peace, Professor Rotunda.
Associate Attorney General Rachel Brand wrote last month about the ways that college campuses are suppressing free speech and what the Trump-Sessions Department of Justice is doing to protect students' First Amendment rights:
These restrictions take a variety of forms. For example, speech codes at many colleges ban speech that is “offensive,” a subjective standard that allows college administrators to arbitrarily ban speech they find disagreeable. For example, Georgia Gwinnett College stopped a student from speaking about his religious faith because it “disturbed the comfort of persons” – even after he had gotten a permit from the school to speak.
Other schools claim they allow free speech but impose so many rules and procedures that it is almost impossible for speakers to reach an audience. Pierce College in Los Angeles, for example, limited students’ “free speech” to a space the size of a couple parking spots and required a permit to speak even there. At a community college in Michigan, a student was arrested and jailed for handing out copies of the U.S. Constitution because they didn’t have a permit.
Ms. Brand gives other examples of how colleges suppress speech or enable third parties to suppress students' speech. Then she turns to what the DOJ is doing to protect free speech rights:
The U.S. Department of Justice is not standing on the sidelines while public universities violate students’ constitutional rights – we are backing free speech lawsuits against universities that violate the First Amendment. Thursday, we are filing a brief supporting a group of Berkeley University students who allege that the University’s policy imposing stricter rules on controversial speakers violates the First Amendment. This is the third suit in which we have filed such a brief, and it will not be the last.
Defending the fundamental constitutional rights of all Americans is a core part of the Department’s mission, and defending free speech rights is particularly important. Free speech is not only a fundamental right, but, as James Madison said, the “effectual guardian of every other right.” Free speech enables citizens to advocate for all their other civil rights and is the single most powerful bulwark against government tyranny. This is perhaps why our Founders protected it in the very first amendment in our Bill of Rights. It is also why the Department of Justice is working so hard to protect it - free speech is too important for the Department of Justice not to speak on its behalf.
As Ms. Brand notes, it is ironic and sad that colleges and universities, where students should be exposed to and challenged by a broad range of ideas as they hone their thinking and skills, are where free speech rights are being systematically suppressed by liberal college administrators. We are grateful to the Trump-Sessions DOJ for recognizing and addressing this serious threat to students' constitutional rights.
The Foundation for Individual Rights in Education (FIRE) released its annual report on speech codes on college campuses:
Despite the critical importance of free speech on campus, too many universities — in policy and in practice — chill, censor, and punish students’ and faculty members’ expressive activity. One way that universities do this is through the use of speech codes: policies prohibiting speech that, outside the bounds of campus, would be protected by the First Amendment.
The good news? Each year, more colleges are adopting speech-friendly policies. The bad news? Still one-third of colleges restrict free speech in their written policies:
Just under one-third (32.3 percent) of surveyed institutions received FIRE’s lowest, red light rating for maintaining speech codes that clearly and substantially restrict freedom of speech. This year’s figure is seven percentage points lower than last year and almost 42 percentage points lower than in FIRE’s 2009 report.
Most institutions — 58.6 percent — receive a yellow light rating. Yellow light policies restrict narrower categories of speech than red light policies do, or are vaguely worded in a way that could too easily be used to suppress protected speech, and are unconstitutional at public universities.
Most of the colleges and universities surveyed are public schools, which are bound by the First Amendment and are therefore violating their students' constitutional rights by restricting free speech.
The report goes into detail on the specific types of policies and provisions that restrict speech on campus, noting that 10% of colleges maintain a "free speech zone," which restricts speech to a small area on campus. FIRE also acknowledges the unfortunate practical effect of this institutional disrespect for free speech among students and faculty:
Despite the continued decline in speech codes, however, free speech on campus remains under serious threat. Student, faculty, and administrative demands for censorship of controversial or offensive speech are common, and an unacceptable number of universities continue to punish students and faculty for constitutionally protected speech and expression.
This disturbing trend also plays out in the culture at large, as people demand that the government protect them from offensive speech, not recognizing that the First Amendment equally protects all citizens against government censorship of their speech and that those demanding censorship today could be threatened with censorship tomorrow. We are grateful to FIRE and the other organizations fighting to protect free speech on college campuses.
