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Phi Beta Cons

The Right take on higher education.

Christmas in January for the First Amendment



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This a wonderful day for liberty. I want to take the Citizens United v. FEC opinion home, read it, read it again, and then read it aloud to my kids. I feel like it’s a First Amendment Christmas. While this is a campaign-finance case, its reasoning should echo beyond the byzantine world of election finance. Bench Memos is of course all over the analysis, but there are elements that are clearly applicable to that other arena where government entities are using the force of law to stifle free expression: academia.

My favorite excerpt deals with the necessity of facial challenges to laws that chill protected speech:

The ongoing chill upon speech that is beyond all doubt protected makes it necessary in this case to invoke the earlier precedents that a statute which chills speech can and must be invalidated where its facial invalidity has been demonstrated. (emphasis added).

It is quite common for universities to impose speech codes that are clearly overbroad, and then attempt to resist facial challenges to that language by arguing that only specific applications of the policy — not its chilling effects — are susceptible to legal challenge. Citizens United will help drive a stake in the heart of that practice.

Additionally, the Court is skeptical of regulations that seem targeted at “disfavored associations.” In his concurrence, Justice Scalia notes:

The dissent says that when the Framers “constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” [citation omitted.] That is no doubt true.  All the provisions of the Bill of Rights set forth the rights of individual men and women — not, for example, of trees or polar bears.  But the individual person’s right to speak includes the right to speak in association with other individual persons.  (emphasis in original).

Free association is not just key in the world of partisan political debate, it is also a fundamental element of the university’s “marketplace of ideas.” Students speak individually, to be sure, but often their voice is most effective when joined with other voices, and it is in the regulation of student groups where the university’s restrictions are most keenly felt.

There’s more, much more, to discuss, but for now I’ll leave that discussion to my colleagues at Bench Memos. As for me, I’ve got to go break the news to my kids that, no, we will not be reading the last chapter of The Trumpet of the Swan tonight; we’ve got a majority opinion, concurring opinions, and a 90-page dissent to wade through.



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