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Why The Proposed Trump Order on Free Speech Is Misguided

Universities have a serious free speech problem, at least as that term is colloquially used. The most infamous incidents are those in which speakers are prevented from being heard, as my friend, Heather Mac Donald was at Claremont McKenna, or are assaulted as was Allison Stanger, when she hosted Charles Murray at Middlebury. But much more dangerous to the free development and exchange of ideas in my view is the conformity encouraged by many university administrations and faculties.

Take my own university, for instance: when the President of that university defends safe spaces and derides anyone who opposes them as people from “country clubs,” it hardly encourages faculty members to speak their mind on politically controversial subjects. When the Provost of the University officially decides that certain kinds of scholarship are “antithetical” to the university’s “values,” defined in the vague terms of “diversity” promotion, it provides direction to avoid certain viewpoints and subjects. And, take my own profession of law: there is evidence of discrimination against conservatives in the legal academy, which no doubt has a chilling effect on free speech, colloquially understood.

Thus, the President of the United States is right to be concerned about the state of free inquiry at our universities. Nevertheless, the President’s proposed executive order on free speech and universities is a bad idea. First, it is not all clear he has authority to issue it. It is true that many administrations have claimed authority to impose conditions on government contractors (and most universities do a lot of government contracting) under a statute that allows them to promote efficiency in government operations. Nevertheless, its use here is the same kind of aggressive stretch that conservatives rightly deplored when President Obama used it to impose a variety of conditions on federal contractors that were ideologically-motivated rather than efficiency-based.

Issuing this order, of course, will not make it less likely that progressives will continue to misuse executive authority for their own purposes. But it may weaken the resolution of the judiciary to curb further usurpations, because when both political sides resort to the same practices, they are more easily treated as political norm.

An even deeper objection is that private universities are not in fact violating free speech if they favor certain viewpoints over others. (Of course, that does not excuse them from tort liability if speakers are assaulted on their watch). Private universities are not state actors and thus have no obligation to treat all speech equally, even when that speech is otherwise within the bounds of the traditions of academic freedom. While free speech is often colloquially used to refer to practices of private institutions, it applies by its terms only to state actors.

Indeed, private universities may have First Amendment rights to promote their particular viewpoints at the expense of others. That is most obvious with religious universities. They may well have free exercise rights to create a campus that does not employ or even host those who are hostile to their doctrines. The rights of secular universities are less clear in this respect, but I am inclined to believe that universities have some freedom to police the expression of their employees. As Michael Stokes Paulsen has observed, if associations and institutions have the right to speak under the First Amendment, as they plainly do, they require “freedom of autonomous message formation and delivery by the group” including “the power to define who will constitute the group that forms the message and the speakers who will express it on behalf of the group.”

Making universities more open to hiring faculty of different views and creating an atmosphere on campus truly open to the exchange of opposing ideas is a worthy goal. Nevertheless doing so directly by law would require such intrusive government oversight of the universities that it would be unwise even if it were not, as it is at least to some degree in the case of private universities, unconstitutional. In a subsequent post, I will suggest a series of legislative proposals that might help the climate of free speech and inquiry on college campuses, while still defending the autonomy of these institutions.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 05, 2019 at 09:04:43 am

This ought to be rich. More failed strategies from the great minds that led us to state enforced gay marriage.

Damn your stupid principles, we are on the verge of a civil war here.

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Harold
on March 05, 2019 at 10:23:31 am

True enough, private and sectarian universities are often (though not always, see., e.g., U.S. 5th Circuit desegregation cases involving private colleges) regarded as shielded from federal constitutional restraints by the state-action doctrine. But of course like all private parties within a State, private universities are subject to the constitutional restraints and commands of State constitutions, which, unlike the U.S. Constitution, have always operated directly upon the State’s citizens, natural and artificial. And most State constitutions have one version or another of a freedom of press and speech clause, which could be brought to bear on private universities via litigation or enforcing statutes.

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Prof. James E. Viator
on March 05, 2019 at 11:21:27 am

Perhaps the George C. Dix Professor in Constitutional Law can explain where in the Constitution the Federal Government is given power to subsidize state and private universities in the first place.

If universities wish to shut down free speech and discriminate against advocates of liberty, they should be cut entirely from all taxpayer subsidies.

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Charles N. Steele, PhD
on March 05, 2019 at 11:22:52 am

What he should do, instead of an executive order, is just send a letter saying something to the effect of:

Dear Colleague:

We won't say that refusing to allow free speech on your campus will get your funding pulled, but we won't say it won't, either, and boy, you've got a lovely campus here, and it would sure be a shame if somebody sued you, etc. etc.

Love, Department of Ed OCR

Mafia-style threat letters changed Title IX enforcement without having to go through pesky rulemaking procedures, why can't it work for this?

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Brian M. Saxton
on March 05, 2019 at 17:54:26 pm

"...and it would sure be a shame if somebody sued you, etc. etc."

Yes, and let us use the *cooperative* lawfare employed by the EPA and NGO's / States in Massachussetts v EPA.

Now that would be rich!

BTW: DR McGinnis.
The State already interferes in the conduct of "private" universities. consider that the State and the Courts have required such things as compelling a religious student association to accept into its membership avowed atheists.
Here we see the State (and the Judiciary?) supporting a certain *diversity* of viewpoint _ Ha!!!! So why not provide for conservative students AND instructors the same rights as that little atheist was afforded against the "repressive" student association.

It is time to insist upon free, open, unfettered debate on campus. If it requires withholding grants to the university, so be it!!!!
Otherwise, we will continue to wallow in self-pity while the academics publish innumerable laments against the horrors of university political correctness. Hey, at least they can put those papers on their CV as another published paper!!!!

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gabe
on March 05, 2019 at 22:31:06 pm

How about we require students to pass an up-to-date 100-question first amendment con-law exam to get into college?

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Jefferson
on March 18, 2019 at 05:58:50 am

[…] Some problems with the idea of a sweeping presidential order to decree free speech on campus — and a promising if more modest step the White House could take instead [Donald Downs, Cato] Two more views on how universities can “fend off outside intervention and, more importantly, be true to their own mission… [by] nurturing a better free speech culture” [Keith Whittington, parts one and two; John McGinnis] […]

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Higher education roundup | Overlawyered

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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