False Free Speech Defenses in Kentucky, Minnesota, and California

As FIRE continues to be successful in our efforts to prevent schools from violating the First Amendment, universities are devising more creative—and specious—ways to rebut FIRE's admonitions. The most recent odd response involves claiming that a university's discussion of enacting unconstitutional speech policies is itself protected speech. This defense not only misses the point, but it threatens to obscure and undermine First Amendment rights. Students, in tandem with administrators, have also begun falsely invoking free speech as a defense against criticisms that they are censoring their peers.

Last week, Eastern Kentucky University (EKU) President Doug Whitlock responded to FIRE's charge that the school's proposed Social Web Policy, if enacted, would violate the First Amendment rights of students. Whitlock thanked FIRE for our input, emphasized that the university is still soliciting comment on the proposal, and assured us that he shared our concerns. However, his response further noted that "drafters of the policy have certain rights to freedom of expression, even if some of what they propose is ultimately eliminated or modified"—and here, Whitlock has missed the point. FIRE does not challenge EKU's ability to discuss university policy and explore new initiatives. Instead, our concerns stem from the fact that, if enacted, the Social Web Policy would violate freedom of expression. There is no First Amendment right to impose a policy on students that violates their First Amendment rights.

Similarly, in December, the University of Minnesota's College of Education and Human Development responded to FIRE's charge that its Teacher Education Redesign Initiative (TERI) proposal would grossly violate students' freedom of conscience by subjecting them to a political litmus test. In its response, the university remarked that "[s]urely FIRE can acknowledge and support the right of our faculty to engage in a robust exchange of viewpoints and proposals to this end, including controversial proposals and perspectives that may well require further refinement in the coming months." Indeed, FIRE does support this robust exchange of ideas. Yet, the university's attempt to use a free speech defense to, in a manner of speaking, fight FIRE with fire ignores our point that if these discussions result in the implementation of the TERI proposal, the resulting policy would violate students' First Amendment rights.

However erroneous these defenses, we are heartened that EKU and the University of Minnesota appreciate that their faculty and administrators have free speech rights. By affirming the ability to discuss university policy—a right we do not dispute—these schools are acknowledging that the U.S. Supreme Court's holding in Garcetti v. Ceballos, 547 U.S. 410 (2006), restricting the speech rights of government employees, does not apply to universities.

Nevertheless, invoking the First Amendment in a specious way ultimately threatens free expression by confusing the doctrine and discrediting actual speech concerns.

When administrators and faculty members fail to teach their students the most basic principles of free speech, we end up with students who have little idea about how to exercise their First Amendment rights legally and responsibly. Most recently, students at the University of California, Irvine, who were arrested after launching a coordinated effort to disrupt the speech of Israeli Ambassador Michael Oren are now claiming that their First Amendment rights were violated. In response to this misguided argument, Professor Alan Dershowitz wrote an excellent piece explaining why there is no free speech right to orchestrate a coordinated effort to undermine the free speech rights of others. Erwin Chemerinsky, dean of the UC Irvine School of Law, agrees. We hope that, before attempting to champion free expression, universities and students looking to censor others take more time to understand it.