The courts have failed. The culture is failing. Unless Congress acts, we may lose not only free speech on college campuses, but free speech in America. In the memorable phrase of my friend, Foundation for Individual Rights in Education president Greg Lukianoff, college students are “unlearning liberty,” carrying the virus of censorship and oppression beyond the university and into the nation.
The courts are failing not because the underlying legal doctrines are flawed but because the remedies for censorship are completely inadequate. As of right now, there is a far greater financial incentive for a university to keep its sidewalks shoveled in the winter than to protect one of our nation’s founding liberties. If a student slips and breaks an arm, they stand to win much larger damages in court than a professor denied a promotion because of his speech or a student group thrown off campus merely because it’s Christian.
As it is, students and professors can launch exhausting legal cases, fight the university tooth-and-nail through years of depositions, motions, trials, and appeals, and at the end of the ordeal win an injunction and attorneys’ fees. In one memorable case, I fought a university for more than seven years and won a week-long jury trial, only for my client to be awarded a total (including attorneys’ fees) of far, far less than $1 million. Universities are some of the richest institutions in American life. These dollar amounts are utterly meaningless to their bottom lines.
It’s worth achieving individual justice in individual cases, but even the strongest precedent ends up providing only a minimal deterrent effect, especially when compared to the overwhelming cultural pressure for more censorship, more thought control, and less tolerance of even the most reasonable dissenting voices on campus.
The New York Times today published an op-ed that provided a public window into the kinds of free-speech arguments that dominate campus discourse. The piece, by Ulrich Baer, a vice provost at New York University, argues that restricting speech that “invalidate[s] the humanity of some people” is a “public good.”
It’s necessary to translate Left-speak to understand what it means to “invalidate the humanity of some people.” In real terms, it doesn’t mean belonging to the KKK, it means nothing more than merely disagreeing with racial and sexual identity politics. So, if you’re Heather Mac Donald and believe that radical anti-police rhetoric and actions from Black Lives Matters is actually costing black lives, then you’re (in the words of activists at Claremont Pomona college) questioning “the right of Black people to exist.” If you’re Charles Murray, and you’ve come to campus to discuss the class divisions that are causing America to “come apart,” a mob can and will shut you down.
Here’s Baer, with words that should chill every American heart:
The idea of freedom of speech does not mean a blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of that community. Free-speech protections — not only but especially in universities, which aim to educate students in how to belong to various communities — should not mean that someone’s humanity, or their right to participate in political speech as political agents, can be freely attacked, demeaned or questioned.
In other words, campus radicals will let you speak only when they deem your speech is worthy. And if they don’t? Then, the mob isn’t a mob, it’s a collection of idealists “keeping watch over the soul of our republic.”
Enough. We cannot count on campus administrators to protect free speech. They’re so terrified of the radicals that they’re more prone to apologize for free speech, arguably our nation’s most essential liberty, than they are to defend it. Witness Berkeley bowing before the mob time and again. Witness the groveling apology from the chairman of Middlebury’s political-science department to the campus community. A mob attacked and wounded a member of the faculty, and this man actually said that his decision to offer a “symbolic department co-sponsorship” of the event at which that attack occurred contributed to a “feeling of voicelessness” that “many” allegedly experience on campus.
Their voices seemed plenty loud when they violently shut down Murray’s speech.
If we can’t count on courts or colleges to protect free speech, then it’s time for Congress to step up. There’s a remarkably simple solution to the problem of free speech, at least on public university campuses: Adjust the incentives. Make it costlier to censor than to protect the Constitution.
At public universities, campus censors have the freedom to speak, but they do not have the freedom to oppress.
All it would take is a law holding that if a court of final jurisdiction finds that a public university has violated the constitutional rights of a student or faculty member, then the university will pay liquidated damages to the plaintiff in the amount of no less than $5 million. It will also forfeit 25 percent of its federal funding in that current fiscal year. If a university is a repeat offender at any point in the five years following, it will forfeit 100 percent of its federal funding in that fiscal year.
Here’s what will happen: Universities will respond with all the energy and fury of a person experiencing an electric shock. The rule of law will be restored, and our essential liberties will be protected anew.
Does all this sound draconian? It’s not. The primary task of any public official in the United States is to protect and defend the Constitution of the United States. It doesn’t matter how well you perform your secondary role, whether it’s governing a state, distributing drivers’ licenses, or even teaching biology — if you fail in the primary task of preserving our constitutional republic, you have no business calling yourself a public servant.
Furthermore, such a strong political statement in favor of free speech will have a potent cultural effect. Private universities that choose to maintain totalitarian enclaves will face powerful market pressures from more-free and less-expensive public universities, and the contrast between liberty and oppression will be made clear for all to see. (It’s worth noting, too, that private universities are not immune from civil law. Mob violence is just as unlawful on private property as it is on a public campus, and law enforcement cannot and must not stand aside when radicals riot.)
At public universities, campus censors have the freedom to speak, but they do not have the freedom to oppress. Constitutional protections are meaningless if the law can’t provide an adequate remedy for their infringement. It’s time to change the calculus. It’s time to crush campus censorship.
— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.