This commentary was originally featured in Forbes on February 27, 2018.
In the face of rising intolerance on our campuses, there is confusion in some quarters regarding not only how, but whether state lawmakers should act to protect the right to free speech at our public institutions of higher learning.
Here in Texas, as one newspaper account recently stated it, “After months of media conflagration, hand-wringing and attempts to push through new laws, [Texas state] lawmakers still can't seem to rally around a way to boost students' free-speech rights. . . . A few ideas have been raised, but they've repeatedly been met with questions about whether a state law regulating universities' free-speech policies is even necessary.”
This apparent confusion over state lawmakers’ duties is itself confusing: All parties apparently know that the First Amendment applies with equal force to public colleges and universities. (At the same time, there is no First Amendment protection for speech seeking to “incite” the audience to illegal actions, nor for “true threats,” “fighting words,” obscenity, harassment, defamation, or the “heckler’s veto,” through which some seek to “shout down” an invited speaker.) The Supreme Court has ruled that “State colleges and universities are not enclaves immune from the sweep of the First Amendment. . . . [T]he precedents of this Court leave no room for the view that . . . First Amendment protections should apply with less force on college campuses than in the community at large” (Healy v. James 1972).
However, too often today, the freedom required to pursue truth is impeded in and by our universities themselves. The nonpartisan think tank, the Foundation for Individual Rights in Education (FIRE), has published its latest report on academic freedom, Spotlight on Speech Codes 2018: The State of Free Speech on Our Nation’s Campuses. Its most salient findings are:
- “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.”
Texas has five red-light public universities.
- “Most schools (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.” Texas has 11 yellow-light public universities.
Given the above information on the number of schools failing to uphold Supreme Court doctrine on the First Amendment, why do some still question the necessity of state action?
Last year, SB 1151 was introduced in the Texas Senate. It would have mandated protection of free speech at all Texas public institutions of higher education. It passed in the Senate, but never made it out of the House for Governor Abbott’s signature.
Several comments by opponents of the bill raised the “necessity” question. One of the bill’s critics asked, “What does this bill do that isn’t already covered by . . . the United States Constitution and the Texas Constitution?” A parallel concern was expressed by another critic, who is reported to have rejoined, “Even before this bill goes into effect, that [policy] is a violation of the First Amendment, is it not?"
Asked for comment on the issue by Texas media, Ron Trowbridge, who serves as a trustee at Lone Star College, was quoted, saying: What would [lawmakers] mandate? The First Amendment? It’s already been mandated by the 55 framers of the [U.S.] Constitution, so theirs would just be a redundancy.”
The answers to these questions are straightforward: The First Amendment does not enforce itself. Yes, senior administrators are responsible for upholding the First Amendment at public colleges and universities. Yet the existence of unconstitutional speech codes and of protesters’ “shout downs” of invited campus speakers testifies to the fact that some of these institutions and administrators need additional support in their efforts to protect the conditions of teaching and learning.
In fact, in some instances, administrators themselves have acquiesced, at the least, to these unconstitutional regulations. This is why the Texas legislature must step in. After all, the first duty of any legislature is to protect the liberties of its citizens, liberties guaranteed by both the Texas and U.S. Constitutions. If public college administrators have in some instances found themselves unable to protect free speech and debate, as they are obliged to do under the First Amendment, there is no higher duty for the legislature than to bolster these administrators and their schools’ free-speech-protection efforts.
This is why the confusion some profess regarding whether the legislature can or even should act to protect campus free speech is itself confusing. Apparently, this confusion is reflected in some of the media accounts of the matter, at least in the case of the quote of Lone Star Trustee, Ron Trowbridge, above, which appears to concur with the view that Texas doesn’t need to pass a state law to protect campus free speech, because we already a First Amendment.
I contacted Trustee Trowbridge, with whom I have worked on higher-education reform for a number of years, to learn the meaning of the quote attributed to him. Via email last week, he responded that he “was quoted accurately” in the media “as asking, ’What would [lawmakers] mandate . . . ? The First Amendment? It's already been mandated by the 55 framers of the Constitution, so theirs would just be a redundancy.’"
However, Trowbridge’s email response adds, “It now remains for lawmakers and universities to enforce what is mandated and protected by the First Amendment.” He continues, “If a university takes government money . . . it must comply with the First Amendment, which protects offensive speech. As Justice Antonin Scalia rightly observed, ‘If you stop speech that hurts other peoples' feelings, the First Amendment will become a dead letter.’"
So, in its proper context, Trustee Trowbridge’s statement can be understood to argue that, yes, the U.S. Constitution already contains the First Amendment, repetition of which would be redundant. But that hardly ends the matter—unless the First Amendment is intended to be left to serve merely as a useless “parchment barrier,” to quote James Madison in Federalist 48. Therefore, when public colleges and universities struggle to protect free speech and debate, it is incumbent of state legislators to fulfill their constitutional duties and fill the void.
In the final count, the argument for the necessity for state action on this issue is as old as Aristotle. When our college students read Aristotle’s Politics, they encounter his argument for the primacy of laws over human caprice: “As difficult as it is to find the truth about equality and justice, this is still easier than it is to convince . . . the powerful. . . . For those who are weaker always seek equality and justice, but those who dominate them take no thought for them.”
This ancient reminder of the corrupting effects of power should also remind us why democracy depends on the rule of law as embodied in the U.S. and Texas Constitutions. In a democracy, the majority holds ultimate power. To protect against the corruption that can come with such power, we have constitutional limitations, such as the First Amendment. Because the powerful can come to “take no thought” for minority claims, the First Amendment always focuses on the protection of unpopular opinions.
In the Sixties, when the Berkeley Free Speech Movement began, it was largely those on the political left whose speech rights needed to be protected on public university campuses. Today, it is largely those on the political right who need such protection. Political camps rise and fall, but the need of all camps for the protection of the First Amendment remains constant.
If state action is deemed “unnecessary” to protect free speech–one of our most cherished civil liberties, if not the most cherished civil liberty—then one is hard-pressed to explain when it is ever necessary.