A Campus Free Speech Case Shows How Fragile Liberty Can Be

COMMENTARY Civil Society

A Campus Free Speech Case Shows How Fragile Liberty Can Be

Oct 30th, 2019 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
The U.S. Court of Appeals for the 6th Circuit reminded us how easily such a critical freedom can be compromised. Pictured: The University of Michigan Law Quad. jweise/Getty Images

Key Takeaways

Every law student learns that government attempts to regulate the content of speech are almost presumptively unconstitutional.

In the past few decades, however, politics and ideology have become more important than liberty; when that happens, censorship is soon to follow.

Universities are at it again, proving that the temptation for the powerful to silence their critics can be strong indeed.

The First Amendment to the U.S. Constitution begins: “Congress shall make no law … abridging the freedom of speech.” Commitment to this freedom, once universally considered fundamental, may be on the rebound.

In reviving a lawsuit over the University of Michigan’s censorship code, the U.S. Court of Appeals for the 6th Circuit reminded us how easily such a critical freedom can be compromised.

Here’s how important the freedom of speech used to be:

James Madison, primary author of the Constitution and America’s third president, wrote: “Our First Amendment freedoms give us the right to think what we like and say what we please. And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority.”

In his 1941 State of the Union address, known as the “Four Freedoms Speech,” President Franklin Roosevelt said that “freedom of speech and expression” was one of “four essential human freedoms.” 

Article 19 of the Universal Declaration of Human Rights, which the U.S. signed, asserts: “Everyone has the right to freedom of opinion and expression.” 

Every law student learns that government attempts to regulate the content of speech are almost presumptively unconstitutional. Such censorship, as the Supreme Court put it in a 1952 decision, “makes for caution and timidity” in others, and the high court repeatedly has warned against a “chilling effect on free speech.” 

Just the potential of discouraging speech is taken so seriously that courts’ standards for who is permitted to challenge such government action are relaxed.

In the past few decades, however, politics and ideology have become more important than liberty; when that happens, censorship is soon to follow. Colleges and universities, once the epicenters of robust debate and freedom of thought, began imposing speech codes that target undesirable speech for suppression.

I know this by experience. In the mid-1980s, my First Amendment professor at the State University of New York at Buffalo law school wrote the censorship code that the faculty unanimously passed. 

There’s no need to make this up. A First Amendment teacher actually wrote, and the law school faculty unanimously adopted, a speech suppression policy for a public university law school.

The law school tried to cloak its censorship by labeling the speech it sought to banish as “harassment.” That didn’t fool anyone. The policy said that any “remarks based on … group stereotype” will be “swiftly and openly condemned, wherever or however they occur.” 

As a liberal columnist for The Washington Post wrote at the time, the law school “flunked the First Amendment.”

Universities are at it again, proving that the temptation for the powerful to silence their critics can be strong indeed. The University of Michigan, for example, also tried to ban speech by calling it “harassing” or “bullying” behavior, with penalties that included even expulsion.

At one point, the university’s website defined “harassing” to include such things as persistent annoyance or creating an unpleasant situation. The university deploys a “Bias Response Team” to investigate so-called “bias incidents” that include stereotyping or excluding “anyone in our community based on their identity.”

The Bias Response Team is there to “support students who feel they have experienced bias,” and does not determine whether a bias incident actually occurred. But it can refer such matters to the police or the Office of Student Conflict Resolution.

Speech First, a free speech advocacy group, challenged the University of Michigan policy as it relates to speech. U.S. District judge Linda Parker, appointed by President Barack Obama, denied its motion for a preliminary injunction.

On appeal, the 6th Circuit reversed the district court, finding that the Bias Response Team’s ability to inform university officials or the police about alleged bias incidents “is a real consequence that objectively chills speech.” In addition, “the very name ‘Bias Response Team’ suggests that the accused student’s actions have been prejudged to be biased.”

The appeals court also noted that the university adjusted its definition of “harassing” only when Speech First filed this lawsuit, raising suspicion that the change “is not genuine.” In fact, the court said, the school “continues to defend its use of the challenged definitions.” As a result, the challenged censorship of speech reasonably could be expected to recur.

The Freedom Forum Institute’s 2019 State of the First Amendment report found that nearly one-third of Americans “think the First Amendment goes too far in the rights it guarantees,” a significant increase from last year. 

This is proof of President Andrew Jackson’s warning that eternal vigilance is the price of liberty.

This piece originally appeared in The Daily Signal