Recap: FIRE’s Joe Cohn’s testimony in front of the House of Representatives Committee on Education and the Workforce

By October 2, 2018

As we announced on Newsdesk, FIRE’s Joe Cohn testified before the House Committee on Education and the Workforce last week in a hearing called “Examining First Amendment Rights on Campus.” During the hearing, members of the House of Representatives questioned Joe and other panelists about the ways in which universities restrict student and faculty First Amendment freedoms, and discussed steps the federal government can take to better protect those rights on campus.

Chairwoman Virginia Foxx (N.C.) began the hearing by stating why it’s important to ensure students and faculty speech rights are protected:

University campuses should function as a marketplace of ideas for students to exchange knowledge and share their varied and distinctive viewpoints. When freedom of thought, expression, and association are stifled on campus, the basic rights of students and staff are irreparably undermined. This is not a partisan issue.

Across the dais, Ranking Member Bobby Scott (Va.) echoed the importance of protecting all speech on campus, especially speech found disagreeable by some, or perhaps even most, of the campus community.

Let’s be clear, even speech that may be considered despicable speech is indeed protected by the First Amendment on public university campuses. You do not need a First Amendment to protect agreeable and acceptable speech. Public universities, as state actors, have a duty to ensure free speech, and any restriction on it must be in line with established constitutional principles.

Towards the end of the hearing, Rep. Rick Allen (Ga.) asked Joe what the committee could do to help protect student and faculty speech rights. Joe responded:

I think the two best steps the committee can take with respect to free speech would be to target free speech zones where there’s political consensus that they’re wrong and unlawful, and courts have spoken with near unanimity, creating a pretty careful and well-thought-out test, making sure schools are using it. And also setting that balance right with anti-harassment measures to make sure that schools are responding to known instances of harassment, as they’re both legally and morally required to do so, while refocusing their attention on the tests the courts have used to make sure that balance is done without stepping on the toes of the First Amendment . . . . Both goals are important and crucial to accomplish.

You can watch the entire hearing here:

In Joe’s written testimony to the committee, he noted that leaders from both the Republican and Democratic parties have spoken on on the importance of protecting free expression on college campuses. For example, he highlighted former President Barack Obama’s remarks, rebutting calls for censorship of political opponents:

[We] have these values of free speech. And it’s not free speech in the abstract. The purpose of that kind of free speech is to make sure that we are forced to use argument and reason and words in making our democracy work. And, you know, you don’t have to be fearful of somebody spouting bad ideas. Just out-argue them. Beat ’em. Make the case as to why they’re wrong. Win over adherents. That’s how things work in a democracy.

Joe also included comments from Senators Mitch McConnell (Ky.) and Bernie Sanders (Vt.) about the importance of ensuring the right to free expression on campus, and noted that Del. Eleanor Holmes Norton (D.C.) “made campus free speech a central theme of her 2017 commencement address to Georgetown University Law Center graduates.”

During the hearing, Joe fielded an interesting and important question from Rep. Elise Stefanik (N.Y.) about threats to freedom of association on campuses, particularly at Harvard University. Later this week, my colleague Ryne Weiss will be covering this exchange and more on Newsdesk.