Phi Beta Cons

The Right take on higher education.

Christmas in May for the First Amendment


I love it when Christmas comes more than once per year. Yesterday, the Ninth Circuit Court of Appeals (yes, the Ninth Circuit) decided a case that should be one of the final nails in the coffin of the argument that vague “harassment” concepts somehow trump the First Amendment rights of students and professors. The case arose after a professor sent three “racially charged” e-mails over a college listserv. The e-mails were rude and boorish at best, racist at worst, and multiple college employees took offense. The offended employees filed a class-action (!) lawsuit against college officials, alleging that the e-mails created a “hostile work environment.”

The Ninth Circuit ruled for the college, decisively. My colleague David Hacker has the details at the Academic Freedom File, and Eugene Volokh breaks down the case in detail over at the Volokh Conspiracy. I don’t want to replicate their efforts, but I have to point out one particularly beautiful part of the opinion:

History likewise suggests that the Fourteenth Amendment was intended to extend, and not retract, the freedoms enshrined in the First. In the run up to the Civil War, professors and colleges played a key role in the spread of abolitionist ideas. See Robert Bruce Slater, The American Colleges That Led the Abolition Movement, J. Blacks in Higher Educ., Sept. 1995 at 95–97. The South moved to harshly suppress abolitionism as dangerous and incendiary, and Republicans responded by making “demands for free speech a centerpiece of their political program.” Michael Kent Curtis, The 1859 Crisis Over Hinton Helper’s Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment, 68 Chi.-Kent L. Rev. 1113, 1151 (1993); see also id. at 1131, 1134–38. It can hardly be surprising, then, that the Reconstruction Congress sought to protect freedom of speech along with other fundamental liberties when it enacted the Fourteenth Amendment. See, at 1172–74. Free speech has been a powerful force for the spread of equality under the law; we must not squelch that freedom because it may also be harnessed by those who promote retrograde or unattractive ways of thought.

Why is this paragraph so beautiful (at least to First Amendment geeks)? Because it concisely demonstrates that there is no real conflict between free speech and legal equality. For some time, campus administrators have behaved as if free speech were somehow in conflict with the Fourteenth Amendment’s command of “equal protection of the laws.” Yet the reality is that legal equality is virtually unobtainable without free speech.

While the Ninth Circuit’s statement is eloquent, I prefer a different, shorter statement I heard almost ten years ago. I was at an event with a key player in the civil-rights movement. In the midst of several rapid-fire questions, someone asked him why he thought they were able to make such rapid progress in the late 1950s and early 1960s, with the effective end of de jure segregation. His response?  

“There are two reasons we succeeded: Almighty God and the First Amendment.”


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