Now there are consequences for violating free speech. President Trump’s executive order on campus free speech—which threatens a loss of federal research funding for schools that fail to protect First Amendment rights—is a game changer, writes Stanley Kurtz:
Public universities are indeed obligated to uphold the First Amendment. The problem is that they regularly ignore that charge and promulgate unconstitutional speech codes, speech zones, and bias-reporting systems anyway. There’s a cottage industry in lawsuits against public universities that violate the First Amendment, as well as against private colleges that flout their own stated free-speech principles. Plaintiffs usually win once they muster the time, money, and courage to sue, but universities quickly find roundabout ways to reinstitute the offending policies, beginning the cycle again. If colleges face a loss of federal funds, however, they just might give up on evading the First Amendment.
University offices of legal counsel are going to think a whole lot harder about campus speech codes, speech-zones, and bias-reporting systems once they’re facing a potential withdrawal of federal funding, instead of just a “red light” rating from FIRE. Campus legal offices are cautious to a fault and can’t afford to rely on the hope of lax federal enforcement. What’s more, it’s likely that a bad speech code rating from FIRE or a complaint from Alliance Defending Freedom will filter back to the regulators. In fact, there may even be a formal mechanism developed that will allow free-speech groups to make the case that a university policy is either unconstitutional or in violation of its own stated promises. If this enforcement mechanism isn’t available at first, it could be added eventually under public pressure.
What’s going to happen when a college that has embraced the University of Chicago’s free-speech principles manifestly violates them? Almost every campus already has a never-enforced rule against shout-downs. What’s going to happen when a school refuses to discipline a manifest violation of that rule? Shout-downs aren’t exactly secret. You’re likely to catch the next one on a viral video. Even if regulators would prefer to do nothing, inaction in the face of video evidence will be difficult.
In this way, Trump’s executive order creates an entirely new enforcement dynamic on a new playing field. The administration will either actively enforce the new rule, or be publicly attacked by its base for refusing to do so in the face of obvious violations. In many — perhaps most — cases, university offices of legal counsel will remove unconstitutional policies well before regulators even act.
[Stanley Kurtz, “The Politics and Policy of Trump’s Campus Free Speech Order,” National Review, March 22]
