By Nancy Thorner -
In an essay of January 15, 2015, Can the West Stand Up for Free Speech?, Victor Davis Hanson, a classicist and historian at the Hoover Institution, Stanford University, opened his article with these thoughts:
Western civilization’s creed is free thought and expression, the lubricant of everything from democracy to human rights.
Even a simpleton in the West accepts that protecting free expression is not the easy task of ensuring the right to read Homer’s Iliad or do the New York Times crossword puzzle. It entails instead the unpleasant duty of allowing offensive expression.
Recently (3/4/2019) Victor David Hanson appeared as a guest on Tucker Carlson's TV Fox cable show, at which time he spoke about Trump's free speech push for colleges given at CPAC on Saturday, March 2nd, 2018. As Trump told the conservatives in the audience, Williams “took a hard punch in the face for all of us.” "If they want our dollars, and we give it to them by the billions, they’ve got to allow people like Hayden and many other great young people, and old people, to speak, and if they don’t, it will be very costly.” Through this declaration at CPAC, President Donald Trump transformed Hayden Williams from a victim to a conservative folk hero.
Tucker Carlson, in introducing Hanson, spoke of American universities and colleges as once having the freest speech in the world. . . "Now American higher education is increasingly dominated fascist who tolerate but a single set of ideas."
Hanson, in his remarks, enumerated ways in which Democrats were going to attempt to square the circle with Trump's free speech proposal to align with their hatred of Trump.
According to Hanson, Democrats are going to attempt to do so by using Orwellian language such as:
- Free speech is called "hate speech"
- Censorship is called "trigger warnings"
- Segregation is called "safe spaces"
- Skepticism of man-made global warming is called "creationism" or "denialism".
Hanson doesn't believe this ploy will work, but the effort must be made as federal support for higher education amounts to 26 billion dollars. As Hanson said: "There will be free speech, just not what you and I call free speech"
89.7% of colleges restrict free speech
According to a report from the "Foundation for Individual Rights in Education," the vast majority of students at America’s top colleges and universities (9 in 10) surrender their free speech rights the moment they step onto campus. A report released on Dec. 11, 2018 by the Spotlight on Speech Codes 2019: The State of Free Speech on Our Nation’s Campuses analyzes the written policies at 466 of America’s top colleges and universities for their protection of free speech. The report finds that 89.7 percent of American colleges maintain policies that restrict — or too easily could restrict — student and faculty expression. The analyzed policies are accessible in FIRE’s Spotlight Database. FIRE rates schools as “red light,” “yellow light,” or “green light” based on how much, if any, speech protected by the First Amendment their policies restrict. When asking students, however, many college students support free speech unless it offends them.
President Donald Trump’s proposed executive order to protect free speech on college campuses follows a growing chorus of complaints from conservatives that the nation’s universities are attempting to silence their voices when they’re heckled, disinvited or their presence on campus is otherwise discouraged.
Critics counter that conservatives are turning the shared goal of protecting free speech into a partisan fight. Trump’s proposed executive order has drawn criticism from some higher education leaders.
The University of California system issued a statement Monday, March 4, 2019 calling Trump’s proposal “misguided and unnecessary.”
“Free speech is a fundamental value of the University of California and we already have strong policies in place that protect the free expression of ideas, regardless of political persuasion,” said Janet Napolitano, the system’s president. “We do not need the federal government to mandate free speech on college campuses — that tradition is alive and thriving.”
Joseph A. Morris shares his free speech insights
Joseph A. Morris, a partner in the law firm of Morris & De La Rosa with offices in Chicago and London, maintains an active practice conducting trials and appeals in the areas of constitutional, business, labor and international law.
In an e-mail dated March 4, 2019, Morris had the following interesting take on President Trump's executive free speech proposal with this further intriguing reference in the subject line: "President Trump vs. President Zimmer? Should the "Chicago Principles" Be Mandated on Every Campus?":
President Trump has spoken in recent days of issuing an executive order to address efforts to suppress free speech on campus.
I certainly support the goal of protecting the freedom of speech, and associated freedoms of religion, the press, and association and assembly generally.
Generally speaking, government intervention to address rudeness, unfairness, untruthfulness, and other bothersome aspects of robust speech is not a good idea, whether the offenses take place on radio, television, the internet or campuses. The Reagan Administration's FCC was right to repeal the Fairness Doctrine; deciding what's "fair" in public discourse is not the job of government.
Government's duty is to protect everyone against violence, including violence directed at curtailing the exercise by people of speech, religious, associational, and other freedoms.
To the extent that the Federal Government, inadvertently or otherwise, has by past actions contributed to threats to free speech on campus and in the academy generally, it may be wise to redress them. Several ham-handed interventions by the Obama Administration, with odious consequences, come to mind.
Otherwise, it seems to me that it is a field in which broad-gauge Federal action, whether legislative or executive, may not have much help to offer.
No one has consulted me on the draft of a putative executive order. I heard the President's references to one in his remarks on Saturday at CPAC, the annual Conservative Political Action Conference, but they were short on detail. It will be important to see the actual text.
Meanwhile, I note that Robert J. Zimmer, the President of The University of Chicago, my alma mater, this morning sent an e-mail message to the entire University community pre-emptively criticizing the prospect of such an executive order.
Joseph A. Morris shares Robert J. Zimmer's message
Because of the length of Mr. Zimmer’s message, only an excerpt is shared below:
“There are two related features of potential federal engagement on this issue that would threaten the mission of institutions of higher education. They would do so by creating the specter of less rather than more free expression, and by deeply chilling the environment for discourse and intellectual challenge. The first feature is the precedent of the federal government establishing its own standing to interfere in the issue of speech on campuses. This opens the door to any number of troubling policies over time that the federal government, whatever the political party involved, might adopt on such matters. It makes the government, with all its power and authority, a party to defining the very nature of discussion on campus.”
“The second feature is the inevitable establishment of a bureaucracy to enforce any governmental position. A committee in Washington passing judgment on the speech policies and activities of educational institutions, judgments that may change according to who is in power and what policies they wish to promulgate, would be a profound threat to open discourse on campus. In fact, it would reproduce in Washington exactly the type of on-campus 'speech committee' that would be a natural and dangerous consequence of the position taken by many advocating for the limitation of discourse on campuses.”
Morris's thinking in sync with University of Chicago law faculty member
This pixyish thought crossed the mind of Joe Morris upon reading Mr. Zimmer’s statement. Said Morris:
“What if the President’s executive order sought to condition Federal funding to academic institutions upon their adoption of the Chicago Principles?”
Joe Morris, however, was not alone, for later in the morning John Banzhaf, law professor at George Washington University in Washington, D.C. issued a BUT PRESIDENT ZIMMER public reply. Excerpts follow:
"It appears that the genesis for Trump's new proposal was an organization with great influence with his current administration – the American Enterprise Institute [AEI] – which produced two separate detailed proposals for using threats to funding as a weapon to require colleges to protect academic freedom.
A feature which distinguishes it from other federal policies to cut off university funding – such as President Obama's Title IX enforcement policies, and the threat to cut off funding from universities which bar military recruiters from campus – is that it applies only to research funds.
Under the AEI proposals, which are likely to influence Trump’s final executive order, "colleges should be required to offer assurances that their policies do not restrict constitutionally protected speech or expression and that they will commit to safeguarding open inquiry to the best of their ability. . . . Colleges that receive research grants should be required to establish formal processes for investigating and appealing allegations of speech suppression or intellectual intimidation” – i.e., similar to those for rape complaints." (The same goes for college presidents, many of whom have found it easier to placate the radical fringe than to defend free inquiry. With federal research funds on the line, they would suddenly face a new financial and political calculus.”
John Banzhaf further wrote about precedent for Trump's proposed new free speech application, as the AEI did suggest using the University of Chicago's free speech principles as a model for protecting free speech on university campuses, principles which grew out of a letter Chicago’s Dean of Students wrote to the class of 2020 about the importance of free speech which stated among other things:
“The University's “commitment to academic freedom means that we do not support so-called ‘trigger warnings,’ we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.”
Morris advances a simple mandate solution
Joseph A. Morris concludes his March 4, 2019 email by stating how extremely proud he is of "the stance that The University of Chicago has taken consistently over the years, and that has been reinforced and reconfirmed repeatedly in recent years. The University of Chicago has been a beacon to others, as many other academic leaders have recognized, notably Mitch Daniels, the President of Purdue University, in many recent public statements", as in this report of February 28, 2019, Purdue president and students join forces for free speech on campus.
On February 28, 2019, Forbes magazine likewise ran an essay by Tom Lindsay supportive of the Chicago Principles, “35 Universities Adopt 'The Chicago Statement' On Free Speech — 1,606 To Go”.
Despite Mr. Morris's pride in his alma mater, he questions free speech principles as to limitations on government powers, knowing that power is seductive as was in the case of the Department of Education, a monstrosity created during Jimmy Carter's administration.
It is the hope of Mr. Morris that the Trump administration may not be content simply to defuse the Obama abuses and let the powers fall dormant or die, but instead to resist temptation of using the same powers to push extraconstitutionally toward their own goals.
In the end, however, Mr. Morris believes that a simple mandate for academic institutions to adopt the Chicago principles as a condition of continued Federal funding would trigger a debate very much worth having.