Phi Beta Cons

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First Amendment News


Even as the Supreme Court holds the fate of student free association in its hands, recent days have seen some positive developments for free speech on campus, including a judge (potentially) giving administrators an involuntary spinal transplant, and a reaffirmation of classic First Amendment protections from an unlikely quarter.

First, the spinal transplant. Over the last several weeks and months, we’ve seen universities, publishers, and television networks capitulate to real or perceived threats — canceling speeches, censoring cartoons, and generally demonstrating abject cowardice in the face of e-mail and Internet fit-pitching from the usual suspects. Thankfully, we don’t have to rely on the (non-existent) backbone of university administrators to protect our most basic freedoms. We have the First Amendment:

Threats of violence alone do not justify preventing someone from speaking on campus, U.S. District Judge William Downes told University of Wyoming President Tom Buchanan this afternoon.

During a court hearing in Casper, Buchanan said in response that he wasn’t aware of that provision in the law. He said his decision to not allow 1960s radical-turned-academic Bill Ayers to speak this week at a UW athletic facility was based solely on the possibility that it would provoke violence on campus.

I’m hoping the judge holds the university’s feet to the fire. I take a backseat to no one in my dislike for Bill Ayers (he should be in a federal prison, not enjoying the life of a traveling left-wing celebrity), but you simply do not cancel speeches because of negative listener reaction. That’s a bright-line rule. No heckler’s veto. Not only does caving in to threats only breed more threats, you also end up giving men like Bill Ayers further extensions on their 15 minutes of fame. 

Now, on to dog-fighting. (Yes, you read that correctly.) First Amendment cases can arise in strange contexts, and the Supreme Court’s recent decision striking down a federal law prohibiting depictions of animal cruelty is no exception. In defending its extremely broad statute, the government had advocated a balancing test that would permit public officials to determine if speech was worth protecting by weighing “the value of the speech against its societal costs.” The Supreme Court rightly found this argument “startling and dangerous.”

What does this have to do with the campus? David Hacker, my colleague at the Alliance Defense Fund, explains:

Public universities often justify their speech codes using the same logic as the Government in Stevens. In creating speech codes that ban “offensive” or “intolerant” speech, universities are balancing the value of speech against the way they perceive its societal costs. But these are “startling and dangerous” propositions, because they leave the freedom of speech hanging in the hands of fickle university administrators. As the Court points out: “the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” If it were otherwise, the constitutional right to freedom of speech would be rendered advisory instead of guaranteed. 

Taken together, these cases demonstrate that public officials’ power over free speech is profoundly limited. They don’t have the discretion to subjectively weigh the social worth of speech, and they don’t even have the discretion to surrender to threats.


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