The following paper will discuss the First Amendment of the Constitution, that of free speech. It will also examine the recent Executive Order protecting free speech on college campuses and restricting federal grants or funding.
The First Amendment
As written in the Constitution, the right of free speech protects the freedom of expression. This expression can take the form of verbal, written, and includes the right to assemble. The amendment also protects the right to petition the government for redress of grievances (Vile 138). It also protects the rights of freedom of speech and private associations (Vile 2015). Freedoms under the First Amendment are complicated and could fill volumes of law books (Gallaway 1991). The First Amendment is the foundation of democracy and is fundamental to a government based on justice and law.
Under the law, all communication is protected by the First Amendment. Some forms of communication are not protected. Child pornography is not protected. Speech used for the purpose of criminal activity is also not protected. These are considered exceptions outside of the law. False advertising is considered outside of the law as are obscenities. The government protects speech, and it must be determined if free speech has been infringed upon for it to be a violation of the First Amendment. Correspondently, it must be determined whether a person has had the right of communication substantially interfered with for it to be a violation of the First Amendment. If a person has not infringed upon another's protected right to free speech, then the right of free speech has been protected.
If there is a case brought to the courts for infringement of First Amendment rights it must be determined if there is a "case or controversy" (Gallaway 888). The case must be current, and the claimant must show injury. The court will then be able to address relief and redress the injury. The claimant must also present at least two "prudential requirement" (Gallaway 888). Finally, the claimant must show something more than just a generalized grievance for injury by not being allowed free speech or violation thereof of the First Amendment.
There are many variations of claims under the violations of the First Amendment free speech. Since the First amendment covers written speech and the gathering or free assembly of people, the government is often the defendant in lawsuits claiming a violation of First Amendment rights. The First Amendment applies only to the government as a constitutional limit, and not to private parties. It could apply to any government official, any government official, and a private citizen, and finally behavior by a private party that was encouraged by the government or government action.
In the case of free speech on college campuses, does this apply to private colleges? Free speech is such an essential democratic constitutional right that Americans forget it only applies to government rights, not private parties. Of course, most public agencies are funded by government grants, as are all public colleges. However, private institutions are not required to follow the same rules. Just as private clubs do not have to allow the same membership rules to apply as do public organizations. Private colleges are different from public universities.
Free Speech on College Campuses
President Trump signed an Executive Order on March 21, 2019, tying free speech on
college campuses to federal funding for universities. The issue dates back to 2017 when a conservative speaker was scheduled at UC Berkley campus, and violence broke out. The college canceled the speaker citing concern for safety. Trump who was speaking at the Conservative Political Action Conference annual convention promised to take action in the form of an Executive Order preventing such an incident from happening again. The Executive Order would suspend federal funding to any college that refused to allow conservative speakers to recruit on campuses, despite threats of violence. "The order — might still be vague in terms of policy. But it sends a message that Trump is eager to embrace the priorities of conservative activists, including those upset about being banned from college campuses" (Nilsen 2019).
Conservative feel justified in complaining that the liberal colleges have made speakers with conservative credentials feel unwelcome. Student opposition has caused cancelation of several well-known college speakers. In 2017, Ann Coulter was set to speak at UC Berkeley, and it was canceled. Another conservative speaker, Sen. John Cornyn, R-Texas was to speak at Texas Southern University but was canceled because of student opposition. Conservatives claim they are harassed and prevented from speaking at colleges and universities because of the liberal-minded professors that teach at them and student protests.
What is at stake here is government interference in non-public colleges and universities. The problem has affected only a few liberal college campuses and hardly requires such a draconian response effecting over 4,000+ college campuses all over the country. What is even more troublesome is lack of policy surrounding the Executive Order. What will be the basis for enforcement and who is responsible? Are the courts still responsible for handling the cases of First Amendment violations or is another layer of bureaucracy going to be placed for monitoring colleges?
Conservatives are historically the first to oppose government interference in private organizations. It seems that the lines are blurring between what is justified and what is trampling on the constitutional rights of all citizens and the course of redress. A bigger issue is how difficult is it for opposing viewpoints to be presented on college campuses? If a college is trying to avoid a violent protest, then the college has a right to protect the students and staff. Some public figures are more controversial than others. Is it more important to present the ideas or personality? We want our academic institutions to have a free flow of ideas, but we also want to have our children attend college in a safe environment.
An Executive Order with no policy and no method of enforcement is mainly symbolic. Without regulatory involvement, the President has no authority to withhold funds from any agency to any college. The problem is not that colleges are not allowing diversity of ideas; the problem is some personalities bring inflammatory opinions that are meant to create an atmosphere of contention, not just an exchange of viewpoints. Colleges will always be a place where people can exchange views, but it should not be a place where people come to promote concepts that provoke anger and divisiveness. Democracy is built on freedom of speech, and college creates a flow of ideas to create an atmosphere of problem-solving and critical thinking.
It seems dangerous to politicize college campuses with an issue like free speech. If college campuses face the problem of violence and decide to cancel some speakers to keep the student safe, then that seems like their right to do so. To tie research funds from the government to college campuses to conservative speakers on college campuses is dangerous. It sets a precedent that any president can on a whim change the protocol for government funding.
Gallaway, Russell W. “Basic Free Speech Analysis.” Santa Clara Law Review, vol. 31, no. 4, ser. 2, 1 Jan. 1991. 2, digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1689&context=lawreview.
Nilsen, Ella. “Trump's New Executive Order on Campus Free Speech Is More Symbolism than Substance.” Vox, Vox, 21 Mar. 2019, www.vox.com/policy-and-politics/2019/3/21/18275828/trump-executive-order-campus-free-speech.
Vile, John R. A companion to the United States Constitution and its amendments. ABC-CLIO, 2015.