The Senate Judiciary Committee tackles social and philosophical questions out on the edges of constitutionality. They process proposed constitutional amendments, and their subcommittee on the Constitution oversees constitutional rights’ protection and enforcement. It was only a matter of time, then, before the committee got around to considering the regular eruptions of First Amendment crises at our nation’s colleges and universities.
At a hearing Tuesday morning dubbed “Free Speech 101,” the committee chairman, Iowa senator Charles Grassley, stated the obvious but all-too-often forgotten academic axiom that “higher education rests on the free flow of ideas.”
The senator quoted the landmark 1943 Supreme Court decision in West Virginia State Board of Education v. Barnette, which affirmed public school children’s right to decline their allegiance to the flag at a time when their fathers were fighting fascism overseas. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics,” Grassley read, the words borrowed from Justice Robert Jackson, who penned the court’s opinion in that case (not long after, President Roosevelt would select Jackson to prosecute Nazis for war crimes in the Nuremberg trials).
“Too often all these fundamental principles have been under assault. Too often some people who have exercised their First Amendment rights have themselves been assaulted,” Senator Grassley said, in a reference to riot at Middlebury College in early March, when protests against Charles Murray, whom a student group recruited for a speaking engagement, took a violent turn, resulting in one liberal professor’s hospitalization. No student agitators were expelled or suspended, or as the chairman of the Senate Judiciary Committee put it, “Students received no more harsh punishment than the double secret probation immortalized in a film.”
Democratic senators, meanwhile, in their statements and questions to the witness panel, looked for that untraceable line between the sort of hateful speech that really ought to be suppressed and the constitutionally protected freedom to express the thought we hate.
Witnesses—First Amendment lawyer Floyd Abrams, who defended the New York Times in the Pentagon Papers trial; Richard Cohen, president of the Southern Poverty Law Center; Williams College student Zachary Wood; law professor and prolific writer of an eponymous legal column Eugene Volokh; and Phi Beta Kappa president Fred Lawrence—agreed by and large on the premise of the fundamental freedom. Menacing or threatening speech should raise hackles and trigger administrative action—hair-splitting and subjective definitions of offensive speech don’t help much toward this end.
“We have to be prepared, if we believe in this constitution,” Senator Dick Durbin of Illinois, the upper chamber’s number-two Democrat, “to put up with hateful conduct, racist comments anti-semitic comments, all of the above.” Still, Durbin added, colleges should be allowed to stop the invitation of someone determined to be threatening, menacing, or intimidating.
Senator Dianne Feinstein of California voiced heartfelt support for the embattled chancellor of the Cal system Janet Napolitano, whose policy of restricting high-profile speakers drew allegations of politically motivated censorship—and a lawsuit from the College Republicans. “She is tough, she is strong, she is fair, she is able,” Feinstein said, in defense of the former governor of Arizona and DHS secretary. Eugene Volokh, who teaches at UCLA, later attested his opposition to this view, saying that threats of violent protest “cannot be enough to justify suppression of whose whom they came to suppress.” The cops and UC police might join hands on these occasions, Volokh said—and Senator Feinstein countered, “You don’t think we learned a lesson at Kent State way back when?” It’s up to government, Volokh had argued, “to prevent violence without suppressing rights.” And it’s up the Senate Judiciary Committee, at least in its philosophical stance, to protect the rule of law and the rightful role of government.
Lawrence, who was president of Brandeis University until 2015, described the private university’s obligation to start with a presumption in favor of incendiary speech, to “try to find a way to get to yes” when deciding to permit a controversial speaker on campus. “No matter how radical, offensive, biased, prejudiced, fascist, the program is, you should find a way to accommodate it?” Senator Feinstein challenged—and Lawrence gave a qualified “yes.” The condition? If a speaker comes to campus, they should be prepared to civilly answer challenging questions.
But surely applying the “balancing test” to campus free speech gives the First Amendment insufficient weight and starts us down a slippery slope, Grassley suggested. On Monday, the Supreme Court unanimously rejected an attempt to stifle speech—in this case the name of a punk name derived from a self-deprecating racial slur—that some might find offensive. Censoring whatever might offend creates an exploitable precedent; and, as censorious protests of the Public Theatre’s politically inspired Julius Caesar attest, the impulse to suppress offensive speech transcends partisan tribalism. So does the need to safeguard its free expression.
