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Law & the Courts

A Republic, If You Can Keep It: Or, Why Victimhood and Fear Won’t Preserve Liberty

(Jonathan Ernst/Reuters)

Thirteen years ago, I filed a lawsuit on behalf of two brave young women — Ruth Malhotra and Orit Sklar. They were students at the Georgia Tech, they’d faced unconstitutional censorship at their school, and they sued to challenge four blatantly unconstitutional policies, the school’s speech code, its speech zone, its student-fee-funding policy, and a “safe space” training program that explicitly condemned traditional Christianity.

If you think outrage mobs are new, consider what happened next. Ruth and Orit faced a torrent of campus hate. Ruth (an American of Indian descent), was called a “Twinkie” (yellow on the outside, white on the inside), and online posts photoshopped swastikas on her face. She faced rape threats and death threats. One emailer threatened to throw acid on her face at graduation. We sought police protection on her behalf, simply so she could attend class in peace.

I’ve told this story before, but here’s a part I haven’t fully told. In spite of the fact that there was a vibrant Christian and conservative presence on campus, Ruth and Orit fought largely alone. In fact, one large campus ministry was angry at them for defending the Constitution, claiming it was making their life more difficult on campus. I had to fly to meet the general counsel of a major campus ministry to justify my decision to fight for the Constitution. I met with tenured Christian faculty and urged them to stand with Ruth and Orit, and while some offered (appreciated) private support, the public silence was deafening . . . and shameful.

The silence emboldened the Left. Their assault on Ruth and Orit was largely unopposed, but Ruth and Orit had courage. They persevered. And they won.

Georgia Tech was not only forced to revise its speech policies, the judge put the university under five years of court supervision — no policy changes without prior judicial approval. The university voluntarily changed its speech-zone policy, and the court struck down the challenged aspects of the safe-space policy. At the end of the litigation, the judge awarded Ruth and Orit more than $200,000 in attorneys’ fees, and he unilaterally published a statement condemning Georgia Tech’s public duplicity. I’ve never seen anything like it, before or since.

The Tech case was extraordinary, but the cowardice — or sometimes outright opposition — of allies was typical. In my very first campus case, a brave Christian group challenged Rutgers University after it tossed the group off campus for upholding a rule requiring that its leaders adhere to the group’s statement of faith. The very first opposition to the case came from — you guessed it — other Christians. They berated one of the group leaders so badly that I’ll never forget our late-night conversation as she wept at the pain and betrayal. But she persevered, and she won. And now Christian groups like hers have existed on that campus for almost twenty years.

Silence (and sometimes outright opposition) from fellow Christians and conservatives was so common that it became a standard part of my warning to clients. “If you file this case, I’m with you every step of the way. I’m here for you morning, noon, and night. But on campus you’ll be alone. You’re fighting for people who won’t thank you, who won’t support you, and might even oppose you.”

I think back to my own law-school experience, happening as it did in the midst of the first great wave of political correctness. Before my friends Alan Charles Kors and Harvey Silverglate published The Shadow University and founded the Foundation for Individual Rights in Education (I later became president of FIRE), egregious violations of individual liberty took place largely in, well, the shadows.

But I remember. I was there. I remember the shout-downs in class, activists calling employers of conservative students (including federal judges) trying to pressure them to withdraw job offers. I remember activists putting the faces of conservatives on gay porn and taping the pictures on the walls of the school. And I remember the vicious backlash at pro-life speech and the abusive calls to “go die” for defending rights of conscience.

I also remember how easy it was to feel alone, that the number of Christians willing to raise their head above the foxhole was a small percentage of the Christians on campus. The rest said that it was too hard. They had too much at stake. Maybe later, when they were more secure. Then you could count on them to make their stand.

But the ones who did stand made an immense impact, one that endures today. I remember the small group that started something called the Veritas Forum, brought a relatively unknown Christian apologist named Ravi Zacharias to campus, and watched him defend the faith to standing-room-only crowds. The event launched a movement, it put Ravi’s voice front and center in the national conversation, and it has transformed countless lives.

Courage has ripple effects in a culture. The few students who had the courage to stand against their schools were part of a legal movement that ripped the campus speech-code regime to shreds. Some of them went through hell, but are they a cautionary tale or do they represent an inspiration — an example of what a few determined people can accomplish when they persevere?

We hear of the cautionary tales from corporate America. James Damore was fired, yes, but has any single person done more — working with his legal team and a few core allies — to expose the hypocrisy and intolerance in the illiberal quarters of Big Tech?

I write this long preface in part because I’m getting an interesting amount of pushback to a piece I wrote earlier this week arguing that personal courage is indispensable in the fight against political correctness. Decades of legal battles (that required personal courage) have opened up free speech in the United States to an unprecedented degree. But legal victories can’t make speech easy. And thus, in places like the American college campus, conservatives (including conservative Christians) must have the courage to exercise the liberty that other men and women have so bravely secured.

Mollie Hemingway, for example, called a blog post written by a man named Matt Shapiro “so, so good.” It’s quite thoughtful — and worth pondering — but what really caught my eye is that Shapiro was a student at Georgia Tech during Ruth and Orit’s case, and he did more than most. He actively defended Ruth and Orit in class. Here’s how he described the result:

If you’ve never been in that situation, it is exhausting … just as an intellectual exercise. It is your mind against the minds of 30 of the people you respect and admire. They came at the topic from 15 different angles with a variety of metaphors in a variety of passions. And you have to respond to every one. You try to turn down the heat, but it’s impossible. You try to meet the metaphors where they are or come up with competing metaphors, but it’s a struggle. Smart people are good at arguments. It’s possible to hold your own against one person at a time, but when the whole group comes for you it’s overwhelming. It’s not a competition, but even so they gain moral points if they let their passions overflow a bit and you lose points if you can’t maintain your cool.

Then he says this: “It was not fun. It was a week of my life lost not to arguing a positive point but to trying to defend my position of *not* condemning these two women who ended up winning their case in court.”

We can lament Shapiro’s lost week, but these women spent years of their lives in their effort and endured death threats. Yet they persevered. I’ve been there in the position of the lone voice in a room full of angry people, many times. It’s not fun. But being the lone voice in a study group or classroom is such de minimis bravery that it sullies the word “courage” to describe it that way.

He then describes how a Twitter thread erupted into someone actually trying to threaten his job. His boss told them to “f*** off,” but he also told Shapiro to watch what he says online. So he locked his account for a bit. I’ve been there — in the private sector, as a nonprofit litigator, and as a journalist. I can’t count the threats to my livelihood at this point. We’ve had physical threats online and at our house. Incidentally, many of those threats (though not all) have come from the Trumpist right. Mobs come from many places.

Shapiro thinks I “deeply underestimate the nature of the threat to conservatives.” What? Talk to me after you’ve stood alongside a small group of Christian clients surrounded by an angry intimidating mob of more than 100 protestors. That was 19 years ago. Talk to me when school officials put up pictures of someone who was seen stalking your kids’ school so teachers and students will know to call the cops if they see him. That was seven years ago. Talk to me when someone tries to SWAT you. That was six years ago. There is nothing new under the sun.

So what does Shapiro suggest be done? He suggests some rather astounding legal reforms that would blast apart the liberties of Christians and conservatives with every bit as much force as (if not more than) it would protect the rights of conservatives to speak. He’d loosen libel laws, require media companies to grant private figures unedited access to their public platforms as a condition of disseminating their name or likeness, and implement massive fines when companies allow trends to “destroy the lives of non-public individuals.”

Great ideas . . . right up until you come to the rather elementary realization that those powerful new state instruments would be turned on your allies with a vengeance.

I’ve got a better idea. Build on the bravery of past generations, so that the next generation doesn’t have to bear the same risks. As I said before, a very few brave students shredded the campus speech-code regime, a regime that looked like a legal and cultural juggernaut a few short years ago. Now there is a need for a few more brave students — a few more brave Americans — to stand with those people who face unjustified and illiberal shame campaigns, to plant your flag beside theirs.

What I’m going to say next doesn’t apply to Shapiro. He’s stood up far more than most. He did more at Georgia Tech than most. And, again, I appreciate his thoughtful response. But it applies in spades to plenty of people on the modern Right.

You’re snowflakes. You really are. Past generations pledged their “lives,” their “fortunes,” and their “sacred honor” to the cause of this great nation. The Apostles endured torture and death for the much greater cause of the Gospel. But what I hear constantly around the country is far, far less resolve. The faith that spread in the face of beatings often withers for fear of tweetings. Don’t touch my fortune. Don’t touch my honor.

Look, we’re human. It’s understandable that we want the defense of our values to be relatively easy. We want the blowback to be manageable, and above all we don’t want to risk anything truly precious. Thank God that Ruth and Orit and the many other students who stood alone did not give into that fear, and don’t think for a moment that they risked less than you. Don’t think for a moment that their road was easier than yours.

Never in my life have I seen such victimhood on the right. Never in my life have I seen conservatives more eager to rationalize passivity and seek the aid of politicians to make their lives easier. They look to politicians — even incompetent, depraved politicians — and cry out, “Protect us!”

Protect you? You have the Constitution. Use it. You have nondiscrimination laws. Use them. You have the power of your voice. Use that. Otherwise, your liberty will start to slide away, cultural change will eventually lead to legal change, and your grandkids will one day ask what happened to our free nation. Your answer? “Well dear, defending liberty was hard. So I chose not to do it, and those damn politicians failed us.”

Is that a good answer? No? Well, prepare to give it anyway. That’s the price of a life ruled by fear.


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