free speech

A Pretty Good Week for Free Speech

There are weeks when it’s hard to believe that freedom of speech is one of our country’s core values. It’s frequently in the news these days because it’s been violated, whether through restrictive policies on college campuses, government attempts to compel speech that violates consciences, or government efforts to censor speech that it disagrees with.

Actually free speech is more than a core value. It’s a guaranteed right, etched in the figurative stone of the First Amendment. It is part of that God-given right of “liberty” mentioned in the Declaration of Independence, and along with the other unalienable rights of life and the pursuit of happiness, becomes the reason governments are instituted among men, i.e., to “secure these rights.”

Our recent track record in the free speech arena has been disappointing. That’s why it’s notable that we’ve seen a several positive news reports in the last week or so that defy the normal script and provide a glimmer of hope that perhaps there are reasons to be encouraged about the future of free speech.

President Trump issues an Executive Order (EO).

On March 21, the President issued an EO on “Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities.” One of its purposes is to instruct federal agencies that provide research grants to colleges and universities to come up with polices and regulations that require those grantees to ensure “open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions.”

In other words, if colleges want to hamper free speech, they will jeopardize their opportunities to receive valuable research grants from the federal government.

If the EO indeed creates a more free speech friendly environment on the nation’s college campuses, we’ll hopefully see fewer cases of speech codes, free speech zones, onerous “security” fees and other tricks that are employed to squelch what typically proves to be primarily conservative and religious speech.

Amherst College PC speech code revoked.

On the day before the President’s EO dealing with free speech on campus, Amherst College committed both a free speech infraction and a quick about-face in record time. First, the college’s Office of Diversity & Inclusion posted and emailed to students a “Common Language Guide” that is as politically correct as any speech code we have seen. It was supposedly intended as a “guide to a common and shared understanding of language.” Shared by whom? For example, the guide one-sidedly defines “capitalism” as a system that “leads to exploitative labor practices, which affect marginalized groups disproportionately.”

When conservative students brought the guide to the attention of Amherst College President Biddy Martin, however, she was quick to disown it as running “counter to the core academic values of freedom of thought and expression.”

Federal judge protects free speech from government retaliation.

A federal district judge rebuked a California school district for retaliating against speech it disapproved of from a private businessman. James Riley owns and operates a “living history farm” that offered presentations on historical events such as the American Revolution, the Civil War, the California Gold Rush, and others. It was a popular destination for student field trips sponsored by the school district. That is, until the school district learned of Facebook posts from the owner that didn’t sit well with the school district’s powers-that-be, who cancelled all future field trips to Riley’s farm.

When Riley sued, the school district asked the judge to dismiss the lawsuit on the basis that that Riley has no constitutional right to receive visits from the school district’s students. That may be, the judge responded, but neither can the school district—as a government entity—terminate the field trips for unconstitutional reasons such as retaliation for Riley’s private speech. The judge denied the school district’s motion to dismiss.

If the issue of government retaliation against a business for the unpopular private speech of its owner sounds familiar to you, you’re not alone. David French of National Review and constitutional scholar Eugene Volokh both cite the recent actions of San Antonio in banning Chick-fil-A from the city airport as part and parcel of the same type of constitutional violation that Riley experienced.

Kentucky governor signs campus free speech bill.

And last but not least, Kentucky Governor Matt Bevin signed a bill we’ve reported on into law this week that requires public universities and colleges in the state to guarantee free speech on campus. The law forbids speech codes, speech “zones”, onerous “security” fees, and disinviting speakers because of the controversial nature of their views.

Iowa governor signs campus free speech bill.

Similar to Kentucky’s law, this one also allows student organizations to require that its leaders agree and support the organization’s beliefs. This follows a couple situations where Christian clubs at Iowa universities were denied official status because they enforced such a requirement.

All in all, not a bad week for freedom of speech.

Hawaii Agrees to Protect Free Speech Rights of Pregnancy Resource Centers

In a little-noticed press release recently, the U.S. Department of Health and Human Services (HHS) announced that its Office for Civil Rights (OCR) had reached a settlement agreement with the State of Hawaii over the issue of compelling pregnancy resource centers (PRCs) to promote abortion.

In 2017, Hawaii attempted to legislatively follow in California’s footsteps by requiring PRCs—whose pro-life mission is to persuade pregnant women who are considering abortion to change their minds—to provide such women with a government-scripted notice promoting abortion. Such a requirement ran directly contrary to the mission, conscience, and preferred message of the PRCs.

California, as you may recall, ended up on the losing end of a similar First Amendment case at the U.S. Supreme Court in 2018 in NIFLA v. Becerra. In that case, California passed a law (known as the FACT Act) that required PRCs to put public notices in their facilities and on their websites promoting the availability of free and low-cost abortion subsidized by the state. In a 5-4 decision, the Supreme Court held that such government-compelled speech violated the free speech rights of California PRCs.

In September 2018, following the NIFLA decision, a Hawaii federal district court permanently blocked Hawaii’s version of the law from being enforced against two PRCs, citing the ruling in the NIFLAcase.

HHS had previously been asked by the two Hawaii PRCs to investigate whether the Hawaii law also violated two pro-life conscience laws passed by Congress, the Weldon and Coats-Snowe Amendments, which prohibit states receiving federal funds from discriminating against entities that don’t offer or promote abortions.

The most recent settlement agreement is the culmination of HHS’s efforts to enforce federal conscience laws, as well as the recognition by Hawaii’s Attorney General that because of the NIFLAdecision, as well as the Hawaii federal court decision, Hawaii’s law was unenforceable anyway.

“Conscience is the Most Sacred of All Property”

Being invited to The White House is a singular honor. You ascend the stairs to the State floor for a tuneful arrival. That’s because, as part of protocol, “The President’s Own”, otherwise known as the Marine Orchestra, is often there to greet you with beautiful music.

Members of our Armed Forces officially greet you, and when the large mahogany sliding doors open to the East Room, you are escorted to a row of chairs. The famed Gilbert Stuart portraits of George and Martha Washington capture your attention immediately, flanked by portraits of Theodore Roosevelt on the right and William McKinley on the left.

The event in the East Room on Thursday was unlike any I have attended. The overwhelming majority of the guests were 21 years of age or younger. The excitement was palpable 30 minutes before the President arrived. The iPhones were as ubiquitous as the great portraits and chandeliers that adorn that majestic room. I think it possible that every conceivable photo was taken in that half hour.

The students came from all 50 states. All are undergraduates at American colleges and universities: the Ivies, the large public research institutions, small liberal arts campuses, the gamut.

Of a sudden, the buzz in the room died to the level of crickets, and “Hail to the Chief” wafted from the foyer. Into the great room came the leader of the free world, the iPhones duly aloft to capture his every step and handshake.

He warmly welcomed the guests; said there was a major problem facing the country on college and university campuses, namely a routine and noxiously predictable censorship of conservative students, many of them men and women of faith; and he declared that an Executive Order he was about to sign would direct his Cabinet agencies to review all federal funding flowing to colleges and universities that deign to conflate, reduce, and inhibit free speech and assembly.

The President asked three of the students on the riser standing behind him to speak. Their stories were poignant and compelling:

Ellen Wittman attends Miami University of Ohio. She is the president of that college’s Students for Life chapter. Ellen put out little wooden crosses to remember the innocent preborn whose lives had been snuffed out by abortion. She was allegedly told by school administrators that in order to put out the crosses, she would need to put up so-called ‘trigger warning’ signs for fear that she might offend other students with her pro-life views.

Kaitlyn Muller of the University of Nebraska in Lincoln stood at a table for a conservative student group and was allegedly harassed by a graduate student lecturer and called a ‘neo-fascist.’

Polly Olsen of Northeast Wisconsin Technical College passed out Valentine’s Day greeting cards with sayings on them such as “Jesus loves you.” She was allegedly told she had to stop and move to a ‘free speech zone’ at the school so as not to offend anyone.

The crackdown on students who are imbued with a traditional worldview continues apace even as those college and universities — private and public — continue to consume and absorb giant amounts of taxpayer funding – ‘billions and billions’ in the oft-repeated phrase of the President.

The Trump/Pence Administration, in issuing the Executive Order, is keen that the present censorship stop and has developed a matrix and a catalyst for such a collegiate censorship review.

It is a bold and refreshing decision.

In 2018, Young America’s Foundation, on whose board I am honored to serve, won lawsuits against the University of California, Berkley and Kennesaw State University in Georgia. Both the suits were major First Amendment victories. There are other lawsuits now pending against the University of Florida and the University of Minnesota.

Championing free speech is a winning issue all around. Americans of goodwill on both sides of the proverbial public policy isle desire a wide swath for robust campus debate over a host of ideas.

The Founders envisioned and encouraged such debate for the healthy functioning of our matchless constitutional republic. The philosopher Richard Weaver once wrote that “Ideas have consequences.” Indeed they do.

It is why the father of the United States Constitution James Madison famously and cogently wrote: “Conscience is the most sacred of all property.”

President Trump’s Executive Order furthers that most important of all Madisonian first principles.

Kentucky Legislature Passes Campus Free Speech Bill

By overwhelming majorities in the state Senate and House, Kentucky lawmakers have passed a campus free speech protection bill aimed at the state’s public (i.e., government-owned) universities and colleges. Governor Matt Bevin is expected to sign it into law.

The Campus Free Speech Protection Act guarantees:

  • That no speaker can be disinvited because their views are controversial.
  • Speech cannot be restricted to small “free speech zones” or impeded by large “security fees.”
  • No permits will be required for spontaneous speech, although schools may charge fees for the use of facilities such as theaters for pre-planned events.
  • Schools must pay damages to those whose free-speech rights are violated.

Such bills are becoming more popular because of recent campus speaker events around the country that have been marred by violence, threats of violence, or merely the school administration’s ideological opposition to the speaker. Speakers such as Ben Shapiro, Milo Yiannopoulos, Ken Ham and Dennis Prager have all, in recent years, experienced this phenomenon.

Eleven states in addition to Kentucky, have passed laws in recent years to protect free speech on campus: Arizona, Colorado, Florida, Georgia, Kentucky, Louisiana, Missouri, North Carolina, Tennessee, Utah and Virginia. A model bill drafted by the Goldwater Institute has formed the basis for several of those state laws.

In addition to state legislatures passing free speech bills, President Trump has recently promised to sign an executive order that will tie federal research funding to universities with how well they guarantee free speech on campus. The President’s action followed a recent event on the campus of the University of California at Berkeley where a student on a public sidewalk recruiting for a conservative student organization was punched in the face by another student who disliked the organization. The incident was recorded on video.

Related resources:

Parents Guide to Religious Freedom on Campus

The Freedom to Speak Your Faith