Free speech advocates say that President Trump’s executive order to promote free speech at universities could work if the administration enforces it through research contracts awarded to schools.
“I’m a fan,” said Rick Hess, an education expert at the conservative American Enterprise Institute. Hess noted that universities get roughly $40 billion in research funds each year, a point of leverage for the Trump administration, which could easily add language regulating university treatment of speakers into existing contracts.
The administration has not released text for the executive order, making it a matter of speculation how it will work. Trump announced the order last week at the Conservative Political Action Conference, saying only that it would require universities to support “free speech” if they wanted to continue receiving federal research dollars.
Federal agencies routinely give universities funds to perform research for them as subcontractors. Research dollars come with contract obligations, and a free speech requirement would merely be an addendum.
Hess said that if the Trump executive order required federal agencies to stipulate in their research contracts with universities that the institution must uphold free speech, the order would only be making explicit what is already an implicit understanding between agencies and universities.
Federal agencies have a range of options for enforcing research funding rules, including: withholding payments, terminating the contract, putting the entity on a suspension list for future contracts, or even suing for violation of rules. Trump could decide in his executive order to either dictate how federal agencies will enforce a free speech requirement or delegate the specifics to federal agencies to determine the best way to enforce the rule.
Adam Kissel, visiting scholar at the American University Center for Innovation and the former vice president at the Foundation for Individual Rights in Education, an organization that opposes campus censorship, agreed that an executive order could be effective. “Even if the order does the minimum, it will dramatically change incentives for universities to finally abolish their speech codes, freeing millions of students and faculty members across the whole political spectrum,” he said.
FIRE, which monitors universities and tracks when they disinvite speakers because of controversy, found that almost a third of universities in 2018 maintained “speech codes that clearly and substantially restrict freedom of speech.” FIRE’s report concluded that another 58 percent of universities had policies vague enough to suppress constitutionally protected speech.
University of California, Berkeley president Janet Napolitano, however, spoke out against the proposed executive order Monday, saying that it was superfluous.
“Free speech is a fundamental value of the University of California and we already have strong policies in place that protect the free expression of ideas, regardless of political persuasion,” Napolitano said in a statement. “Protecting free expression has been part of the University of California’s DNA for decades. We do not need the federal government to mandate free speech on college campuses — that tradition is alive and thriving.”
Berkeley came under the scrutiny of Trump for an incident last month in which a conservative activist was punched for protesting Jussie Smollett’s alleged hate crime hoax. Trump, in his speech at CPAC, brought on stage Hayden Williams, the person who had been punched.
The incident involving Williams was not the first time Berkeley had come under fire for not protecting speech on campus. In 2014, Berkeley student protesters shut down a question-and-answer session by Silicon Valley tycoon Peter Thiel for his views on National Security Agency surveillance. Most recently, the university came under a microscope in 2017 when right-wing instigator Milo Yiannopoulos planned to come to campus but canceled the speech after violent protests broke out.
Napolitano was not the only university president to condemn Trump’s proposal. The president of the University of Chicago, Robert Zimmer, also put out a statement Monday in which he said that “further legislative or executive Federal action has the potential to reinforce and expand the difficulties regarding education and free expression that we are confronting now. It would be a grave error for the short and the long run.”
Hess said he was concerned that, because the proposal lacks specifics, Trump’s final product might not line up with what his own vision for the executive order looked like. “It’s Trump, so who the hell knows what the idea is,” he said.
