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Recap: House committee holds campus free speech hearing, raises FIRE issues

By July 31, 2017

A joint hearing of two subcommittees of the House of Representatives’ Committee on Oversight and Government Reform on “Challenges to Freedom of Speech on College Campuses” opened last week with a short video compilation of recent intense disruptions to speaking engagements that prevented speakers from giving their remarks at various campuses across the country.

With this backdrop, Rep. Jim Jordan used his opening remarks to offer a full-throated defense of free speech principles on college campuses and declared that “this committee is committed to help colleges reinstate the freedom of speech as an important protection.” Explaining the urgency, Rep. Jordan made the following statement:

College is the place for young minds to be intellectually bombarded with new challenging ideas. Unfortunately, today on many campuses, students and faculty are forced into self-censorship out of fear of triggering, violating a safe space, a microaggression, or being targeted by a bias response team. Restricting speech that does not conform to popular opinion contradicts the First Amendment principles and the right to speak freely without regard to offensiveness. Shout downs, disinvitations, and even violent rioting as we saw in the video are some of the tactics used to silence opposing views.

The joint subcommittees heard testimony from New York Law School professor and former president of the ACLU Nadine Strossen; Daily Wire editor-in-chief Ben Shapiro; comedian and filmmaker Adam Carolla; Evergreen State College’s former provost and Vice President for Academic Affairs, Michael Zimmerman; and former president of Brandeis University and the Anti-Defamation League’s National Commissioner, Frederick Lawrence. All agreed that free speech is particularly important in higher education and expressed concern about the current state of respect for principles of free speech on college campuses.

In his prepared testimony, Mr. Zimmerman argued that silencing voices on campus has adverse consequences for society at large:

[I]f diverse opinions are not celebrated on college campuses, where community members are supposed to traffic in ideas, I doubt that they’ll find any welcoming environment in our society. When we shut out voices, we shut out ideas and there are serious intellectual consequences of such behavior.

FIRE couldn’t agree more. Today’s students are tomorrow’s civic leaders. If we condition students to accept censorship, they will be less likely to resist censorship when they are in seats of power.

Representatives from all parts of the political spectrum communicated concern for the state of free speech on campus. Rep. Jamie Raskin made a persuasive case that free speech is at its most vulnerable when people chip away at protections for speech they don’t like. Likening such censorship to individuals each taking a single bite out of an apple, Raskin’s metaphor demonstrates that when everyone gets to censor speech they find subjectively offensive, eventually there is no “apple” left. Raskin has been a consistent friend to free speech on campus. Recently, he signed on as a co-sponsor of a resolution condemning the use of misleadingly-labeled “free speech zones” on campus.

Speech codes were also front and center during the hearing. Rep. Jody Hice, for example, wanted to know why speech codes continue to proliferate despite a string of court decisions striking them down.

Hice: Now we’ve got these … these speech codes in place… We have court decisions… overwhelmingly have ruled against a majority of the speech codes in universities, and yet to this day about 40% of our colleges still have speech codes in place against what has been determined by the rule of law. And why is that?

Strossen: You know, law is not self-enforcing. The Constitution is not self enforcing. We still have segregated schools all these decades after Brown vs. Board of Education, and that’s why it’s so important for organizations like the ACLU, FIRE, the Foundation for Individual Rights in Education, to be able to bring lawsuits to actually enforce principles. I mean the examples of using so-called “time, place and manner restrictions” as a pretext for suppressing ideas, that’s illegal and unconstitutional, but you have to bring a lawsuit in order to vindicate that position.

Strossen’s answer was right on the money. Speech codes are a persistent problem despite good case law. That is why FIRE has worked with lawmakers to statutorily eliminate speech codes and why we have a Stand Up For Speech Litigation Project and a recently launched Million Voices Campaign to challenge those codes in court.

Focusing the conversation on some of the broader cultural issues at play, Rep. Virginia Foxx, who chairs the Committee on Education and the Workforce, was quick to convey her disappointment in the lack of appreciation some students have for free speech:

As we all agree, free speech is fundamental to a free society. It’s astonishing to me that so many young adults today are willing to throw those constitutionally protected rights out the window just because they are on a college campus and may disagree with the content of what is being said.

The hostility some students hold towards free speech was eloquently addressed by Strossen:

And we really have to educate the activists, the students on today’s campuses. I have to say, as an activist from the sixties and seventies, I’m thrilled by the resurgence of student activism in support of racial justice and social justice. I’m really heartened by their bringing in voices who were traditionally marginalized and disempowered, but I am disheartened by their apparent belief that freedom of speech is an enemy. Nothing could be further from the truth. The whole struggle for racial justice throughout the history of this country, starting with the abolitionists, going through the civil rights movement and every movement for social justice including for women’s rights and LGBT rights has depended critically on robust freedom of speech including for ideas that were controversial and hated.

Strossen’s point is one FIRE routinely makes. Free speech has been the driving engine behind virtually every victory for civil rights. It is a powerful tool activists must embrace and defend to achieve social change.

In another important moment, Rep. Raja Krishnamoorthi, the committee’s ranking member, pinpointed the challenge and the necessity of protecting students from unlawful harassment without encouraging censorship. Expressing his concern that students have been targeted by unlawful conduct and that some have turned to violence to silence their political opponents, Krishnamoorthi analyzed the issue through the lense of a disturbing case at American University. There, Taylor Dumpson, the first black woman elected as the school’s student government president, was targeted by white supremacists with online harassment, days after bananas were hung on campus with nooses around them:

We don’t want anything to border on violence. Any kind of incitement to violence. That is why when Ms. [Rep. Val Butler] Demings brought up the case of Taylor who is with us in the audience… I think that particular episode, to me, I think as a reasonable person, hopefully most people would agree is crossing the line into a place where there might be violence on its way… At the same time I am disturbed when I see videos of people getting shouted down and shut down.

This case, and Krishnamoorthi’s dual concerns, are precisely why FIRE is a staunch advocate of addressing allegations of student-on-student (or peer) harassment by enforcing policies that are no more —  and no less — stringent than the framework set forth by the Supreme Court of the United States in Davis v. Monroe County Board of Education. In Davis, the Supreme Court defined peer harassment as conduct targeted at its victim on the basis of their real or perceived membership in a protected class that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” This standard gives institutions authority to effectively respond when students are subjected to the kind of actionable conduct Taylor Dumpson experienced, without infringing on free speech.

Additional members of Congress like Val Butler Demings, Ron DeSantis, Eleanor Holmes Norton, Thomas Massie, Mark Meadows, Gary Palmer, and others also addressed the need to ensure that voices aren’t stifled on campus.

We are glad that so many lawmakers participated in this important conversation and hopeful that the continued spotlight on campus censorship will lead to meaningful change.